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Wednesday, July 14, 2010

CDL Drivers Subject To DOT Enforcement





















Alabama@Work
By: Tommy Eden, Attorney

In recent months SAPs have been reporting to a well respected Medical Review Officer, Dr. C.B. Thuss, Jr, M.D., CMRO that some CDL drivers are being fined by DOT when they have continued driving after a violation, without completing a SAP return-to-duty process. SAPs have been surprised at this.

An e-mail from a SAP reported: "I called DOT, and was told that DOT is now starting to go after the employees that don't follow through, to fine them if they are using their CDLs. He said they were not just going to fine the companies."

Employers should not be surprised. This has always been in the regulation.

49 CFR Part 382.103(a): "This part applies to every person and to all employers of such persons..."

49 CFR Part 382.507: Any employer OR DRIVER [emphasis added] who violates...shall be subject to...civil and/or criminal penalty provisions..."

Under this regulation, a driver and an employer are equally responsible for consequences of a violation. For example: a driver is part-time with Company A and part-time with Company B. He tests positive on a Company A test, and is removed from safety-sensitive functions, including driving. He also must be removed from safety-sensitive functions for Company B. But he must first inform Company B of the violation. If he does not, he faces serious fines for driving, when he knows he cannot drive.

Because of confidentiality, Company A could not report the violation to Company B. The driver is the only source of this information.

It would be good practice for SAPs and employers to inform drivers about this provision in the law and recent enforcement activity. Drivers ought not think that they can safely hide a violation from other employers, or from any future employers.

Common Sense Counsel: There have been many changes in the DOT regulations over the past 2 years and more to come by October 2010 with a change in cutoff level and the addition of ecstasy to the testing panel. Now is a good time to audit you entire DOT training and compliance program.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com