The CMV Driver Pre-Employment Test: Observations
It certainly seems easier to simply administer a pre-employment test than to comply with the rather detailed and administratively burdensome exception set forth in the regulations. However, the use of outside data-gathering agencies (such as DAC1) may make the job easier. If there is no pre-employment controlled substance test in the DQ file, verify that the proper exception procedures were followed. Documentation of the procedures that were followed should be contained in the DQ file.
Note the requirement that a motor carrier test (or verify an exception for) a non-employee driver that it uses more than once a year. This exception was drawn to deal with the trip-leased driver, i.e. “a driver employed by one motor carrier, but who is temporarily leased to another motor carrier for one or more trips generally for a time period less than thirty days.” This is an area where the possibility of a wide crack in procedure can ensnarl a motor carrier.
Alcohol testing speaks for itself. However, a motor carrier that would let a new employee drive one of its tractor-trailers with any alcohol present in his bloodstream, even if under the .04 limit, is unsettling to say the least. After all, just what kind of guy shows up to apply for a job with a beer or two under his belt, and what kind of company would entrusts its multi-ton vehicle to him? A sub-.04 test stills provides an argument that the motor carrier should have monitored its driver more frequently than “at least every 12 months.” Also be on the lookout for a failure to comply in any cases where an employee who is not a new hire has recently been transferred to a safety-sensitive function.
Interestingly, the FMCSA has decreed that no controlled substance test is required before a road test or a CDL driving test is administered.
Pertinent Case Law
Not surprisingly, the validity of pre-employment drug testing has been upheld. Further, the validity of drug testing requirements for many types of employees engaged in “safety sensitive” functions other than driving has likewise been upheld. For example, a maintenance worker who on occasion operated “jet trucks, tractors and backhoes” was held subject to “pre-employment” drug testing. As with other breaches of the regulations, there should be some evidence to show that intoxication or drug use played a role in the incident before the failure to administer a pre-employment test is likely to be admitted.
As suggested above, though § 382.301 is titled “[p]re-employment testing,” that is not a completely accurate or precise description of what it requires. Rather, the regulation mandates drug testing only “prior to the first time a driver performs safety-sensitive functions for an employer.” Thus, a driver may be hired and began working for the motor carrier in some capacity without first being drug tested, but no violation would occur until he gets behind the wheel or performs some other safety-sensitive function.