Broker Online Access Now Available to Check Active Status of a Contracted Independent Owner-Operator Motor Carrier

As many of you may be aware CDTOA and AADT (formally CalDATA, C-DATA) has long been questioning the clarity, applicability and enforcement of some vague DOT drug and alcohol testing regulation “guidance” and Senate Bill (SB 871). Specifically, there is confusion as to the proper allocation of responsibility for to controlled substances and alcohol testing (CSAT) compliance between the broker/overlying carrier and independent (non-leased) owner-operator motor carriers. This issue has arguably been a source of confusion since 1999.

A recap of SB 871 and related DOT correspondence was reviewed by our legal counsel, The Law Offices of Brooks Ellison earlier this year. We asked them to provide us with a complete and thorough analysis of the CSAT Agreement issues. In that analysis, our counsel addressed the history and present status of the Broker and independent owner-operator motor carriers’ relationship and industry enforcements positions. This is what was concluded:

Under California law, motor carriers and drivers must comply with the federal Department of Transportation (DOT) drug and alcohol testing requirements (Cal. Veh. Code §34520, 49 CFR §40, §382). DOT regulations require all “employers” of commercial drivers to implement drug and alcohol testing (49 CFR §382). Employers are required to subject drivers to pre-employment testing (including investigating employment history), post-accident testing, random testing and reasonable suspicion testing (49 CFR §§382.301-307, CVC §34520). Independent contractor motor carriers operating under their own authority, direction and control (hereafter “owner-operators”) can be both an employer and an employee simultaneously under federal drug and alcohol testing law. However, the DOT has expressed in several letters their belief that overlying motor carriers/truck brokers (hereafter “brokers”) who contract with an owner-operator would not likely be considered their “employer” under federal law, as brokers do not exert sufficient control over owner-operators (Brennan letter, 1999; Falk letter, 2000).

SB 871 further altered drug and alcohol testing compliance requirements for brokers and owner-operators by modifying several provisions of the California Vehicle Code and Civil Code. Of most importance to the transportation industry, the bill required a person or entity who contracts for the services of independent owner-operators (as defined in CVC §34624) to substantially the same drug and alcohol testing obligations to which an employer is held under federal regulations (49 CFR §§382.301-307, CVC §34520, Cal. Civ. Code § 3333.7). However, specifically noted is the inability for these obligations to “change the definition of ‘employer,’ ‘employee,’ or ‘independent contractor’ for any purpose” (Id.). Under SB 871, drug and alcohol testing requirements begin the moment the contracted owner-operator works for the broker, not “60 of 90 days” (See CVC §§ 15242 and 34520.

Additionally as a result of SB 871, a person or entity may be held liable for treble (triple) damages for any injury proximately caused by a commercial motor vehicle driver, including an owner-operator under contract, if it is shown that: (1) the driver was under the influence of alcohol or a controlled substance at the time of the accident; and (2) the person or entity willfully failed to comply with the DOT drug and alcohol testing requirements (Cal. Civ. Code
§3333.7). In order to have “willfully failed” in this context, it must be shown that any of the following occurred: (1) an intentional and uncorrected failure to have a controlled substances and alcohol testing program in place; (2) an intentional and uncorrected failure to enroll an employed driver into the controlled substances and alcohol testing program; (3) a knowing use of a medically disqualified driver, including the failure to remove the driver from safety-sensitive duties upon notification of the medical disqualification; or (4) an attempt to conceal legal deficiencies in the motor carrier’s controlled substances and alcohol testing program (CVC §34623).

The current CSAT Agreements are essentially standardized agreements between a broker and an owner-operator to share test results. These have been widely distributed and utilized in the trucking industry. The Agreements are intended to authorize the release of the owner-operator’s confidential medical information such that the broker may remain informed of compliance by the driver owner-operator and satisfy their legal obligations under SB 871. The California Highway Patrol (CHP) has not formally endorsed any of the CSAT Agreements currently in use. We understand that some brokers in the past have been denied a satisfactory BIT inspection by the CHP for failure to have in force a CSAT Agreement for all their utilized owner-operators. However, the CHP has denied that this is their policy.

At this time, with the multitude of correspondence and documentation between DOT FMCSA, CHP’s CVS and a number of law firms, AADT feels confident to move forward with an “Agreement of Notification” of an owner-operator’s (O-O) active or inactive enrollment status. This method provides the broker/overlying carrier or contracting entity (Broker) the information they need to verify if an O-O is current with their enrollment in AADT’s consortium for random drug and alcohol testing without violating the O-O’s state privacy rights or DOT FMCSA, 49 CFR, Parts 40 & 382 regulation requirements especially concerning the “blanket releases” prohibition.

Owner-Operators that are AADT clients will be able to submit a “Consent to Release Activity Status” Agreement between themselves and the Broker. The agreement will authorize AADT to notify the Broker should the enrollment status of the O-O change (e.g. active to inactive or inactive to active). The reason for the inactivity status could be for many reasons, including, but not limited to, non-payment for services rendered, incorrect company/driver information, a positive controlled substance or breath alcohol test result, or failure to comply with the U.S. Department of Transportation (DOT) requirements of a return-to-duty process including an Employee Assistance Program. Additionally, the O-O may have also requested to be inactivated for reasons including, but not limited to, illness or disability, temporarily out of service, permanently ceased operations, or elected another consortium. The actual reason of the O-O’s inactivity will not be divulged to the Broker; it will be the Broker’s responsibility to question the O-O to determine their legal status and whether or not they can utilize the O-O’s services.

Log on to our website at www.aadrugtesting.com/csat for the complete analysis and access to the forms pertaining to “Consent to Release Activity Status” Agreement.
In addition to making this consent method available to Brokers, AADT has made this notification feature available online through our web based software option. Once the Broker has set up an online account with us, they will be notified daily if there has been an activity change to their account. They will also be able to log in and view that change. This feature is available to our client’s and Brokers at no extra cost. This is just one more service AADT has to offer to help benefit the industry in their effort to conveniently and efficiently comply with CSAT regulations. Contact AADT for more information or to find out how to sign up for this program.

Beat the Rush…
Enrollments Expire On December 31st

Renewal Packets were mailed out October 1st, if you did not receive your packet, please contact us as soon as possible. If you have returned your completed packets early, your 2009 Enrollment Packet and Certificate of Enrollment will be sent/mailed starting November 10th.
Each year we have to contact or return hundreds of renewals due to incomplete information or missing paperwork. This is very time consuming and costly, please be sure to follow the instructions on the cover page of your packet.

As always, if you have any questions whether it is concerning your renewal, testing, CSAT Compliance Review inspections, reports etc., please contact us @ 800-820-9314

We Are Here To Help!

NASCAR Announces Random Drug Testing Policy

Professional racing circuit NASCAR has announced new random drug-testing rules as part of its substance-abuse policy. The testing is scheduled to begin in 2009.

Although the kinds of drugs being tested for have not been announced, NASCAR said that the policy is “triggered with the use of any drug or medication if NASCAR believes it has been abused or misused.”

Any illegal substances found in a driver’s blood would be considered a violation of the policy, as well as the presence of any substance that might be considered to present a safety issue. That could conceivably include such common and legal substances like caffeine and alcohol.
“We think we have the broadest policy in all of sports,” NASCAR Vice President Steve O’Donnell said, adding that a policy that doesn’t list specific drugs allows NASCAR to “test for any substance that may be abused.”

Drug testing will be conducted by AEGIS Sciences Corporation beginning with all drivers at races in Daytona in January. Random testing will include all drivers, crew members and NASCAR officials. O’Donnell said testing of at least two drivers from each series will occur at every event. Failing a drug test will result in immediate indefinite suspension, with a third violation resulting in a lifetime ban.

 

Sincerely,

Lonnie Johnson
Operation Director