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Tuesday, March 20, 2012

DOT Regulation Update


Alabama@Work
By Tommy Eden, Attorney




Summary of Federal Motor Carrier Safety Administration (FMCSA) Final Rule published in Federal Register on January 18, 2012 (effective February 18, 2012) Harmonizing Schedule I Drug Requirements:

1) Amends the physical qualifications for drivers and the instructions for the medical examination report to clarify that drivers may not use Schedule I drugs (Schedule I controlled substances have a high potential for abuse and have no currently accepted medical use in the United States) and be qualified to drive commercial motor vehicles (CMVs) under any circumstances;

2) Harmonizes FMCSA’s provisions regarding pre- employment and return-to-duty test refusals with corresponding Department of Transportation (DOT)-wide provisions; and

3) Corrects inaccurate uses of the term “actual knowledge.” The sections affected are as follows:

Section 382.213 Schedule I Drugs Prohibited
Prior to this final rule, the text of § 382.213 prohibited CMV drivers from using any drugs when on duty or reporting for duty except when prescribed by a licensed medical practitioner who has advised the driver that the prescribed substance will not adversely affect the driver’s ability to operate a CMV. In this final rule, the Agency amends the language regarding the drugs that CMV drivers are prohibited from using in order to differentiate between Schedule I drugs and non-Schedule I drugs. The changes make it clear that Schedule I drugs may not be used by a CMV driver under any circumstances. FMCSA’s regulations continue to permit the use of non-Schedule I drugs under limited circumstances, when prescribed by a licensed medical practitioner. Accordingly, § 391.41 Physical qualifications for drivers now reads as follows:

(12)(i) Does not use any drug or substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming drug.
(ii) Does not use any non-Schedule I drug or substance that is identified in the other Schedules in 21 part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.

In light of the above regulatory changes the California Department of Motor Vehicles has updated their Medical Evaluation Report DL 51 Form as of February 2012. The FMCSA has likewise modified its Medical Examination Report for Commercial Drivers Fitness Determination Form.

Section 382.211 Pre-Employment Refusals

Prior to this final rule, § 382.211 only prohibited drivers from refusing to submit to a post-accident, random, reasonable suspicion, or follow-up drug or alcohol test. This rule amends this section to include refusals for pre-employment testing and return-to-duty testing as additional prohibitions. This amendment makes the regulation consistent with DOT-wide drug and alcohol testing rules at 49 CFR 40.191(a)(3).

Sections 382.201 and 382.215 Actual Knowledge Clarified
The replaces the term “actual knowledge” with the word “knowledge” in the context of regulations addressing employers’ knowledge of positive test results in these sections, clarifying that these prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct.

U.S. Department of Transportation
Federal Motor Carrier Safety Administration
Harmonizing Schedule I Drug Requirements link to Final Rule
http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Harmonizing-Schedule-I-Drug-Requirements.aspx

Update Provided by Tommy Eden who is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law. He serves on the Board of Directors for the East Alabama SHRM Chapter and assist employers nationwide with DOT and non-DOT drug free workplace polices, training and counsel. He can be contacted at tme@chlaw.com or 334-501-1540 or www.AlabamaAtWork.com

This update is for educational purposes only and does not constitute legal advice. "No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."