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Sunday, December 4, 2016

Making America’s Transportation System Safe Again

To:    Trump Transition Team
Re:    Making America’s Transportation System Safe Again
From: Tommy Eden, Partner, Constangy, Brooks, Smith & Prophete, LLP; Constangy Workplace Drug Testing Practice Group and ABA Labor and Employment Section

Recognizing the Problem: drug use is rampant across the United States by employees in all the regulated transportation industries and is a public threat. While much of this use is of impairing effect narcotics, for which these employees may have a prescription, the risk to America’s transportation system is real. In my opinion, as an attorney that practices daily in this field nationwide, there is not a consistent application of well thought out strategies by all the DOT modes to aggressively attack the issues and implement practical solutions. The time is now for these five possible solutions.

Five Possible Solutions:

First: on December 2, 2016, the Federal Motor Carrier Safety Administration published its final rule “Commercial Driver’s License Drug and Alcohol Clearinghouse” due to become effective January 1 2020.  First, I wish to complement the FMCSA Administrator, and ODAPC Acting Administrator, for their tireless efforts to finally bring this rule to final issue. Then I ask the obvious questions: 1) why not implement in 24 months instead of 36; and 2) why not apply to all regulated employees in all DOT modes?  As stated in the Executive Summary to the rule: “Employers search the Clearinghouse for information during the pre-employment process for prospective employees and at least once a year for current employees to determine whether anyone has incurred a drug or alcohol violation with a different employer that would prohibit him or her from performing safety – sensitive functions.” Obviously, this same process should be applied to all employees working in regulated transportation and the implementation time shortened to 24 months.  

Second: while urine testing has been the gold standard for the DOT since the inception of regulated drug testing, the stories are legion on those who beat the system.  So much so that the DOT several years ago implemented direct observation by urine collectors. Simpler solution, fast track oral fluid and hair testing approval for regulated employers. A system that always keeps the employee guessing as to how they will be drug tested when they report to the collection site, will always be a better deterrent than one where the “employee can prepare for the test.” Attached is a PPT given at a national conference by JB Hunt Trucking proving the value of hair testing.

Third: have all regulated employees submit to an annual Medical Exam by a DOT Certified Medical Examiner.  Currently only Federal Transit and FMCSA mandate that employees obtain a medical clearance card. With an aging workforce in regulated transportation, medical clearance is vital to safety. There is no good excuse for not expanding the mandate to all DOT modes.

Fourth: mandate in the regulations for all DOT modes pre-duty disclosure of impairing effect prescription medications and substances by all regulated employees. With medical and recreation marijuana creating tremendous confusion nationwide, this is the only process that will allow an employer to determine who is fit for duty. The Medical Review Officer or Medical Examiner can deal with the privacy concerns that have stalemated the DOT on this critical safety issue. Subjecting the employee who fails to make such a report, to a regulatory violation and fine will motivate compliance. As noted earlier, opiate and marijuana abuse are rampant and strong action is need to protect the public. 

Fifth: add the ability of employers to begin impairment testing of regulated employees just prior to service. This testing is outside of the ADA regulations for DOT regulated employers. Biometric skin sensors and oral fluid roadside instrumented drug testing devices already exist and may are used in Canada and Worldwide. This would give employers one more way to deter drug and alcohol abuse and protect the public in real time.

Carpe Diem – Seizure the Day with a new Administration. Many of the issues in this policy paper have been bounced around the DOT for over my almost 20 years of practice in this field with not enough action while the traveling public dies on America’s highways, in our trains, aboard vessels, near pipelines and on planes.

Please let me know how I, or our firm, might be of service on this issue to the incoming Trump Administration.

Questions:                Tommy Eden, Esq.
                                 teden@constangy.com
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                                 Constangy, Brooks, Smith & Prophete, LLP
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