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: To get my C-DER recertification, do I need to retake the DATIA DER course again?
ANSWER: You do not need to take the course again, you just need to take the and pass the C-DER certification exam. You can register to renew your certification here:
datia.org/DERRenewal
QUESTION: Under PHMSA and FMCSA, does DOT require an employee to stand down while waiting for the post- accident drug and alcohol test results?
ANSWER: Unless you have a special waiver or company policy you cannot stand down an employee prior to receiving the positive results from the MRO. §40.21 (DOT), §199.7 (PHMSA), §382.119 (FMCSA)
QUESTION: How does the Department’s Public Interest Exclusion (PIE) process work when a service agent has been convicted for an offense related to non- compliance with Part 40 or DOT Agency drug and alcohol testing rules?
ANSWER: When there is a judgment or any other determination of guilt of a criminal offense by any court of competent jurisdiction against the service agent, whether entered upon a verdict or plea, including a plea of nolo contendere; or any other resolution that is the functional equivalent of a judgment, including probation before judgment and deferred prosecution, the PIE process works as explained below:
A DOT official can initiate a PIE against the service agent based solely on the conviction.
Te conviction means that the standard of proof for issuing the PIE has been met.
Terefore, when the DOT initiating official issues the service agent a Notice of Proposed Exclusion recommending a PIE, the service agent will not be able to contest the facts of the non-compliance or the issuance of the PIE.
50 datia focus
Te service agent would be afforded only an opportunity to contest the proposed length of time the PIE would be in place. Subpart R
QUESTION: Does an employer need a stand-down waiver in order to implement a policy that requires employees to cease performing safety-sensitive functions following a reasonable suspicion or post- accident test?
ANSWER: §40.21 requires an employer to obtain a waiver to do one very specific thing: remove employees from performance of safety-sensitive functions on the basis of the report of confirmed laboratory test results that have not yet been verified by the MRO.
An employer does not need a §40.21 waiver to take other actions involving the performance of safety-sensitive functions.
For example, an employer could (if it is not prohibited by DOT agency regulations and it is consistent with applicable labor-management agreements) have a company policy saying that, on the basis of an event (e.g., the occurrence of an accident that requires a DOT post-accident test, the finding of reasonable suspicion that leads to a DOT reasonable suspicion test), the employee would immediately stop performing safety-sensitive functions. Such a policy, which is not triggered by the MRO’s receipt of a confirmed laboratory test result, would not require a §40.21 waiver.
It would not be appropriate for an employer to remove employees from performance of safety-sensitive functions pending the result of a random or follow-up test, since there is no triggering event to which the action could rationally be tied. §40.21
summer 2015
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