newsUpdates

June 2006

Questions & Answers

Question – I would like to know when does the collection process start? The collection site facility we use recently had an incident where our driver/employee was sent in for a random test and when asked to empty his pockets, he stated that he needed to leave. The collector told him that this is a refusal to test.

The driver/employee called our Designate Employee Representative (DER) from the parking lot and explained that his wife was ill. We think the random testing still should be done, but the collector at the collection site said this is a “refusal to test, can we still test the driver/employee?

Answer: The collection process starts as soon as the collector takes the donor to the collection area.

§40.61(b) of the DOT regulations states “Ensure that, when the employee enters the collection site, you begin the testing process without undue delay. For example, you must not wait because the employee says he or she is not ready or is unable to urinate or because an authorized employer or employee representative is delayed in arriving.”

Section 40.191(a)(2) of the DOT regulations states, “As an employee, you have refused to take a drug test if you: Fail to remain at the testing site until the testing process is complete; provided, that an employee who leaves the testing site before the testing process commences (see section 40.63(c) for a pre-employment test is not deemed to have “refused to test”.

This means, that the donor did refuse the random test and the collector was correct in informing him of this and the consequences of refusing the test. He should not be re-tested for this random test, regardless of a re-test the refusal to test would stand as the initial result for this random selection which has the same consequences as a positive result

Helping Our Clients Seek Out Regulatory Clarification and Find Corrective Solutions

We at C-DATA are always striving to be proactive, so when client issues arise whether it is before, during or after a Motor Carrier BIT or Carrier Inspection it is our goal to help the client seek out regulatory clarification and find corrective solutions.

Having received various questions from a few of our clients recently regarding seemingly “new” enforcement policies within CHP relating to business incorporations, we felt the need to ask for clarification from CHP Motor Carrier Safety Division (MCSA) in Sacramento. I would like to share both the questions and responses we received from R. Patrick, Captain Commercial Vehicle Section of the CHP.

Note that throughout this article, when I talk about applicable federal regulations, I’m referring to CFR 49, Parts 40 & 382; these regulations can be found in Section 5 of the C-DATA Company Compliance Manual or in the C-DATA web site at c-data.com or under our site links page, DOT Office of Drug and Alcohol Policy and Compliance at www.dot.gov/ost/dapc or at the Federal Motor Carrier Safety Administration web site at www.fmcsa.dot.gov.

Things You Should Be Familiar With When You Incorporate Your Transportation Business

Question #1 – An owner-operator (O-O) that had recently incorporated had listed himself and his wife as the principal officers in the corporation. The MCS (Motor Carrier Specialist) had instructed the O-O to have his wife complete the supervisor training relating to alcohol misuse and controlled substances as mandated in §382.603 and required the O-O to enroll in the Department of Motor Vehicles (DMV) Employer Pull Notice (EPN) program.

CHP Response: The MCS is correct regarding the requirement for the driver in this situation to enroll in the Department of Motor Vehicles Employer Pull Notice (EPN) program. When an individual incorporates, they no longer meet the definition of an “owner-operator” as defined in Section 34624(b), Vehicle Code (VC), and are no longer entitled to utilize the owner-operator exception to EPN program requirements found in Section 1808.1(e) VC.

The wife identified in this situation is not automatically considered a supervisor simply because she is now a corporate officer of this corporation.

However, if she performs any functions within the corporation which are supervisory over the driver, then she is then a supervisor, and would be subject to the requirement to have CSAT supervisor training.

Clarification - In other words, when an O-O incorporates, for certain regulations, they are considered an employee of the corporation. Although this does not change his/her status in regards to the DOT requirements concerning drug and alcohol testing, they are no longer considered an owner-operator under sections of the vehicle code. O-O’s that are not incorporated are exempt from having to enroll into the DMV’s EPN. The enrollment is $5 per driver and the report is mailed back to the incorporated O-O/driver unless another company officer/employer is specified. When an employee’s driver license is updated to record an action/activity, a check is made electronically to determine if a pull notice is on file. If the action/activity is one that is specified to be reported under the EPN program, a driver record is generated and mailed to that employer. The link to the DMV’s web site is www.dmv.ca.gov/vehindustry/epn/epngeninfo.htm.

As far as the requirement for the wife to complete the training on alcohol misuse and controlled substances (Supervisor Training), whether it is a wife, girlfriend, son, daughter, friend, etc. anyone designated to taking on the supervisory roll over the driver, they then are considered a supervisor, and would be subject to the requirement to have CSAT supervisor training. This would even pertain to an O-O whether or not they are incorporated, if your wife is opening your mail, receives your random notification and tells you about it, makes your appointment for you, signs off on your notification and returns it to C-DATA, she is now taken on the supervisory roll and again would be required to complete the required DOT training

Question #2 – During a Carrier Inspection (many times performed simultaneous with a BIT inspection) a MCS inspector instructed a carrier with 12-drivers, that recently incorporated, to pre-employment test all of the current drivers that have been with the company before they incorporated or to file an exemption document (refer to §382.301 (c) (1) for clarification of exemption document). He also instructed them to check on the drug and alcohol testing records of all the current employees, which would be from the previous company before the incorporation and to re-submit the inquiries to any of the driver’s past employer’s if it had been less than two years.

CHP Response: As long as the same drivers are involved, and the supervisory personnel and CSAT program administrators have not changed, and there is an ongoing, effective CSAT program being conducted, the employer would be considered in compliance with CSAT regulations.

Clarification - If a carrier with employee drivers incorporates, as long as the drivers and primary personnel do not change, there is no need to treat this as a new company in regards to the DOT requirements pertaining to drug and alcohol testing compliance.
Captain R. Patrick, goes on to say, “Accurate and consistent enforcement of CSAT requirements is of utmost importance to the CHP. For this reason, every MCS in the state is scheduled to attend a one-week training class this year at our Academy. The purpose of the training is to clarify rules and regulations to ensure consistent enforcement statewide regarding not only CSAT inspections, but all aspects of terminal and carrier inspections.”

Drug Related ER Visits

The following information was complied by SAMHSA’s Drug Abuse Warning Network (DAWN) at www.dawninfo.samhsa.gov

Out of a total of nearly two million drug-related ER visits in 2004, DAWN estimates that nearly 1.3 million ER visits were associated with drug misuse or abuse:

Alcohol in combination with other drug, DAWN estimates that 363,641 ER visits involved the use of alcohol in combination with another drug:

Non-medical use of pharmaceuticals and drug-related ER visits DAWN estimates in 2004, 495,732 ER visits for non-medical use - i.e., misuse or abuse - of prescription or over-the-counter (OTC) pharmaceuticals.

Remember our qualified AADT staff encourages and welcomes your inquires. We are here to help!

Respectfully,
Lonnie

 

Note that throughout this article, when I refer to the applicable federal regulations, I’m referring to CFR 49, Parts 40 & 382; these regulations can be found in Section 5 of the AADT Company Compliance Manual or in the AADT website at www.aadrugtesing.com under links at DOT Office of Drug and Alcohol Policy and Compliance at www.dot.gov/ost/dapc or Federal Motor Carrier Safety Administration at www.fmcsa.dot.gov.