Bottom Line Up Front (BLUF) Drugs and Alcohol


Bottom Line Up Front (BLUF)

1 – The DOT says 24-hours off is enough if they blow 0.02 but that does not prevent you from firing them – just be sure you are clear that it is “Under Company Authority” and not confused with the DOT regulations.

2  – A CDL driver is NOT treated any differently than anyone else when he is driving a car.

3 – a CMV driver who is not required to have a CDL is not enrolled in a DOT-mandated drug and alcohol testing program, BUT if that driver has failed a drug test, it is illegal to let him drive a non-CDL vehicle (unless he is in the process of, or has completed, the return to duty process).

1 –  You CAN punish a driver for 0.02, just don’t blame the DOT. 

I think a lot of people get confused about the differences between 0.02, 0.04, and 0.08 Blood Alcohol Content (BAC) as measured by a BAT (breath Alcohol Tester)

First, if a driver ‘blows’ 0.04 or more when driving a Commercial Motor Vehicle (CMV) this is a violation of the DOT’s part 40 and the driver must NOT be allowed to drive a CMV again unless / until he has been evaluated by a SAP.

Next, if a driver ‘blows’ 0.02 but less than 0.04 when driving a CMV you must give them 24 hours off, but as far as the DOT is concerned, that’s the end of it. There is a phrase a lot of people get hung up on that states “No other action shall be taken” but this does not stop you from shooting, firing, or otherwise punishing a safety-sensitive employee. The key is, if you DO fire the employee, withhold safety bonus, or otherwise penalize them as a result of the 0.02 BAC, you have to be careful to keep this separate from your DOT-mandated drug & alcohol testing policy, and you have to be sure you treat everyone equally and according to your own policy.

The phrase “Under the carrier’s authority” usually comes into play when this happens.

2 –  A car is a car and a truck is a truck – regardless if you have a CDL or not.

Another area where a lot of motor carrier safety managers sometimes get confused and do the wrong this is this situation: A lot of drivers have been told (incorrectly) that if they have a BAC of 0.04 when driving their private auto, they will receive a DWI or DUI, whereas a driver without a CDL might not. The Federal DOT certainly does not mandate this, and I have not heard of a state doing it either. It is actually unlikely, as each state may have their own enforcement practices but they have to treat each driver the same as the next driver (of a private auto).

Even more commonly, professional CMV operators have been told if they get a DWI when driving their private auto they will have to be sent to a SAP or otherwise punished under parts 40 or 382. This is also not correct. The DOT only has authority when you are driving a CMV, so anything you do in a private auto is NOT a DOT violation.

3 – Do not demote a driver who has failed a drug test – he cannot drive a CMV at all.

Finally, if you have CMVs that do not require a CDL, most people know they do not have to have a DOT-mandated Drug & Alcohol testing program. But, most people don’t realize, you still can’t put someone behind the wheel who has a known history of DOT violations in this category, unless they have been evaluated by a SAP and are satisfactorily participating in a return to duty program, or have finished such a program.

I have run across two scenarios: one, we have big trucks and we have small trucks – the driver of the big truck is in the DOT D & A testing program but the others are not. The driver of the big truck gets busted on a random, so now he gets to take a couple dollars an hour pay cut and drive the smaller truck until he finished the RTD process. The driver decides not to participate in a RTD process and is involved in a serious collision in the step-van. The motor carrier is not surprised when the plaintiff’s attorney brings up the fact a known drug user was driving a 12,800 GVWR step-van and hit his client. But, the motor carrier was really surprised when the DOT prosecuted them for a violation of this rule:

382.501 Removal from safety-sensitive function. . . . For purposes of this subpart, commercial motor vehicle means a commercial motor vehicle in commerce as defined in §382.107,  (this means requiring a CDL) and a commercial motor vehicle in interstate commerce as defined in part 390 (this means greater than 10,000 GVWR involved in interstate commerce).

In other words, you MUST NOT demote a driver, allowing them to drive a non-CDL vehicle, after they fail a drug test or refuse to test.

The similar scenario goes like this: the over-the-road driver loses his job over a bad drug test, so he applies for a job with a local delivery company. He is now driving a 26,000 GVWR (non-CDL) truck, involved in interstate commerce, essentially because he cannot or does not wish to comply with the DOT’s ban on illegal substances. The carrier knows he failed a drug test but does not think part 40 applies to them. This is a mistake. They are using a DISQUALIFIED driver, and that’s just about the worst mistake a DOT-regulated motor carrier can possibly make.

Mike England

DOT Compliance Help Inc

http://www.dotcompliancehelp.com

847-836-6063

About DOT Compliance Help Inc
Phone: 847-836-6063 web: www.dotcompliancehelp.com e-mail info@dotcompliancehelp.com DOT Compliance Help, Inc. is a full-service consulting firm specializing in the interpretation and execution of the regulations and guidelines set forth by the US Department of Transportation Federal Motor Carrier Safety Administration. •Mission Statement• To assist our clients in establishing proper safety management controls in order to minimize accidents, injuries, and fatalities. The ultimate goals are safer roadways for the public and increased profits for our clients. Our core consulting competencies include FMCSA Assessments (mock audits), DOT compliance training (on-site and via webinar) and custom safety plans and policies. We also hold DOT compliance workshops and conferences all across the country. Utilizing a proprietary curriculum developed by our President, Mike England, our classes cover everything you need to know about the FMCSRs, how to survive your next DOT Compliance Review, and how Comprehensive safety Analysis (CSA 2010) will affect you. www.dotcompliancehelp.com

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