September 2006
Questions & Answers
Question:
I’m an owner-operator that was involved in an accident involving my commercial vehicle (truck), the driver of the other vehicle was critically injured, but there were no citations issued to me for a moving violation arising from the accident. Should the critically injured driver die what will be the requirement for me regarding testing?
Answer:
If the fatality occurs following the accident and within the time limits for the required post accident tests, the employer (owner-operators are considered employer/drivers) shall attempt to conduct the post accident tests until the respective time limits are reached. You would not be required to test for alcohol if it has been over 8-hours since the accident or over 32-hours for drugs. For this reason it is important that each individual realizes until the time requirements have expired they need to refrain from consuming alcohol or medication. There is an exception if it is done under the direct supervision of a physician.
As far as the driver that is working out of town, C-DATA has authorized collection sites nationwide. We also can make previsions to do a one time collection at most any collection site in the nation that provides DOT collections. To find a collection site in the area that your driver is working you can refer to your collection site list, visit our website for a current listing or contact our office. If you need assistance in locating a site for a one time collection or any other assistance, contact C-DATA. Note under both of these situations the same regulations apply to owner-operators as employers and drivers.
To Test or Not To Test
When You or Your Employee
Are Involved in an Accident
“My driver has just been involved in an accident with our truck, do I need to have him tested?
” This is a question we at C-DATA have been asked by our clients on numerous occasions. Although DOT FMCSA CFR 49 Parts 40 and 382 has specific guidelines as to how and when a post accident test is required, there are many other factors to be considered when testing. For instance, what is outlined in your written company policy regarding post accident and substance abuse and alcohol misuse? What is required by your insurance carrier or defined in your insurance policy or your worker compensation policy? What is outlined in a contractual agreement your company may have with a specific contractor or broker?
TABLE FOR §382.303(A) and (B)Listed below are the requirements regarding the federal DOT CFR 49 §382.303 including a recommended table of reference.
(a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:
(a)(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(a)(2) Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved.
(a)(2)(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(a)(2)(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(b) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for controlled substances for each of its surviving drivers:
(b)(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(b)(2) Who receives a citation within thirty-two hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
(b)(2)(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(b)(2)(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(c) The following table notes when a post-accident test is required to be conducted by paragraphs (a)(1), (a)(2), (b)(1), and (b)(2) of this section:
|
(d)(1) Alcohol tests. If a test required by this section is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a test required by this section is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. Records shall be submitted to the FMCSA upon request.
(d)(2) Controlled substance tests. If a test required by this section is not administered within 32 hours following the accident, the employer shall cease attempts to administer a controlled substances test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. Records shall be submitted to the FMCSA upon request.
(e) A driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing. Nothing in this section shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
(f) An employer shall provide drivers with necessary post-accident information, procedures and instructions, prior to the driver operating a commercial motor vehicle, so that drivers will be able to comply with the requirements of this section.
(g)(1) The results of a breath or blood test for the use of alcohol, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section, provided such tests conform to the applicable Federal, State or local alcohol testing requirements, and that the results of the tests are obtained by the employer.
(g)(2) The results of a urine test for the use of controlled substances, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section, provided such tests conform to the applicable Federal, State or local controlled substances testing requirements, and that the results of the tests are obtained by the employer.
(h) Exception. This section does not apply to:
(h)(1) An occurrence involving only boarding or alighting from a stationary motor vehicle; or
(h)(2) An occurrence involving only the loading or unloading of cargo; or
(h)(3) An occurrence in the course of the operation of a passenger car or a multipurpose passenger vehicle (as defined in §571.3 of this title) by an employer unless the motor vehicle is transporting passengers for hire or hazardous materials of a type and quantity that require the motor vehicle to be marked or placarded in accordance with §177.823 of this title.
[66 FR 43107 August 17, 2001]
Another important note to remember is if you are going to require the employee to test and it is not under the criteria of the federal guidelines, you must not test them on a Federal Custody and Control Form and the consequences of a positive test result would not be treated the same as if it were a DOT violation. In other words, the driver would not be required to complete the return to duty process as outlined in DOT FMCSA CFR49 Subpart O (§40.281 - §40.313) nor would the testing information show up on your statistical reports for your enforcement inspections. You can specify this similar treatment process as disciplinary actions and follow up treatment requirements in your written company policy; it just would not be enforced under the federal regulations. This is another example why we can not express enough the importance of having an effective written company policy.
So whether you should proceed with having the employee tested should an accident occur that does not fall under the federal guidelines requirements as explained above again would depend on what you have outlined in your written company policy regarding post accident and substance abuse and alcohol misuse, what is required by your insurance carrier or what is outlined in a contractual agreement between your company and a contractor or broker.If you feel the need for clarification on this matter or have any questions or concerns regarding your random testing program be sure to contact us, C-DATA’s 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.