ASK ALICE
In each issue we will be answering questions submitted by members. If you have a question to be answered, please submit it to info@datia. org with Ask Alice in the subject line. Enjoy.
QUESTION: Must all drivers who do not work for an extended period of time (such as layoffs over the winter or summer months) be pre-employment drug tested each season when they return to work?
ANSWER: If the driver is considered to be an em- ployee of the company during the extended (layoff) period, a pre-employment test would not be required so long as the driver has been included in the company’s random testing program during the layoff period. However, if the driver was not con- sidered to be an employee of the company at any point during the layoff period, or was not covered by a program, or was not covered for more than 30 days, then a pre- employment test would be required.
QUESTION: Is a driver who is on-duty, but has not been assigned a driving task, considered to be ready to perform a safety-sensitive function as defined in §382.107 subjecting the driver to ran- dom alcohol testing?
ANSWER: A driver must be about to perform, or immediately available to perform, a safety- sensitive function to be considered subject to random alcohol testing. A supervisor, mechanic, or clerk, etc., who is on call to perform safety-sensitive functions may be tested at any time they are on call, ready to be dispatched while on-duty.
QUESTION: If an employee admits to alcohol misuse or drug use, when is it appropriate for the employer to apply the exception in §382.121?
ANSWER: In order for the exception in §382.121 to be used, all the provisions and condi- tions of this section must be met. In this instance, none of the consequences of prohibited conduct would apply, and the employer would not report the admission
to any subsequent employers. However, if any of the conditions in §382.121 is absent (for example, if the employer has no exist- ing writen policy, or if the driver fails to follow the employer’s treatment program), then the exception may not be used, and the driver would be fully subject to all the consequences of prohibited conduct, including referral and treatment in accor- dance with Part 40 Subpart O, and report- ing to subsequent employers in accordance with §40.25 and §391.23(e).
QUESTION: May an employer allow a driver, subject to post-accident controlled substances testing, to continue to drive pending receipt of the results of the con- trolled substances test?
ANSWER: Yes. A driver may continue to drive, so long as no other restrictions are imposed by §382.307 or by law enforcement officials.
QUESTION: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. Te driver no longer works for the employer where he/she tested positive. Te driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-em- ployment and one return-to-duty), or will one test suffice for both purposes?
ANSWER: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submited to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the require- ments of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day. ❚
[From FMCSA Guidelines Online]
36
datia focus
fall 2013
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