USING VIOLATIONS OF FMCSA REGULATIONS FOR DRUG AND ALCOHOL TESTING TO PROVE CIVIL LIABILITY

Transcription

1 USING VIOLATIONS OF FMCSA REGULATIONS FOR DRUG AND ALCOHOL TESTING TO The Federal Motor Carrier Safety Administration (FMCSA), under the authority of the Department of Transportation, governs employers in the trucking industry and regulates how and when drug and alcohol tests are administered to truck drivers. The regulations are complicated, detailed and address a variety of situations. Employers failing to follow FMCSA drug and alcohol test regulations expose themselves not only to enforcement by the FMCSA, but private civil liability as well if the violation causes or contributes to cause injuries to motorists. A violation of the regulations may be used to support claims for negligence per se and punitive damages. Required Drug & Alcohol Testing The regulations set forth six situations in which drug and alcohol testing is required: (1) preemployment, (2) post-accident, (3) random, (4) reasonable suspicion, (5) return-to-duty, and (6) follow-up testing. 49 C.F.R (2006). Testing is mandatory in the first four situations. If a violating employee is to return to work for the employer, return-to-duty and follow-up testing are mandatory as well. Employers in the trucking industry must perform pre-employment tests for controlled substances on all drivers and receive a negative test result before the first time that the driver performs "safety sensitive functions." 49 C.F.R (a) (2006). A "safety sensitive function" is defined as any activity during the time of work or required readiness until the driver is relieved from the activity. 49 C.F.R (2006). Safety sensitive functions specifically include "all time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle." Id. Pre-employment alcohol testing is optional, but once undertaken, it must also meet procedural requirements. Claimants will want to confirm in discovery whether the driver s qualification file contains the required testing and that the testing was conducted before the first time the driver was allowed to perform a safety sensitive function such as driving a truck. Covered employers and their employees are under a continuing duty of care immediately after an accident. These regulations are frequently violated by trucking companies and drivers. Both drug and alcohol testing is required "as soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce." 49 C.F.R (2006). A covered employer must test its surviving driver(s) for alcohol and controlled substances if the accident involves any loss of human life, regardless of whether the driver received a traffic citation. Id. at (c). If the driver received a citation for a moving violation arising from the occurrence within a prescribed time from the accident (eight hours for an alcohol test and 32 hours for controlled substances), an employer must test its driver if the accident also included either bodily injury requiring immediate treatment away from the scene or disabling damage to a vehicle requiring it to be transported away. Id. at (c). Conversely, no

2 Page 2 post-accident test is required under the federal regulations if an accident includes serious bodily injury or disabling vehicle damage but is unaccompanied by a citation to a covered driver. There are additional regulations in regard to post-accident alcohol testing. A post-accident alcohol test must be administered within two hours of the accident. If that is not possible, then the employer must make a record of the reasons why the test was not promptly administered within the two hour time period. If the employer fails to test for alcohol within eight hours of the accident, attempts to test must cease and the same record must be made. Id. at (d)(1). For controlled substance post-accident testing, the test must be administered within 32 hours, and if not administered, the employer must cease attempts to test and maintain a record stating the reasons why the test was not promptly administered. Id. at (d)(2). A drug or alcohol test administered by law enforcement acting under their independent authority will suffice as compliance by the employer under the regulations for a post-accident test, so long as the employer obtains the test results. Id. at (g). A driver must make himself or herself available for testing or be deemed to have refused, which is a violation of the regulations. 49 C.F.R (2006). Employers are required to provide drivers with the necessary information and instructions regarding what to do after an accident, and, before any driving after an accident so the driver can promptly comply. 49 C.F.R (f). Lack of compliance with the post-accident testing regulations is a huge source of violations for trucking companies because they fail to have procedures in place to conduct post-accident testing. Trucking companies also fail to instruct their drivers about the post-accident testing obligations. Claimants should seek discovery of the trucking company s and driver s efforts after the accident to comply with these regulations. Often no effort is made to comply and the record of reasons for noncompliance is insufficient and untrue. Covered employers are also under a duty to perform random drug and alcohol testing in accordance with 49 C.F.R (a) (2006). For alcohol testing, a minimum of ten percent of the average number of driver positions must be tested annually. 49 C.F.R (b) (2006). For controlled substance testing, a minimum of 50 percent of the average number of driver positions must be test annually. Id. A covered employer must test a driver if the employer has reasonable suspicion to believe that the driver has violated the regulations by either having a blood alcohol concentration of 0.04, 49 C.F.R (a) (2006), or taking a controlled substance, 49 C.F.R (b) (2006). Reasonable suspicion must be based on personal observation of the driver by a company supervisor or official trained at least 60 minutes in regard to the topic of alcohol misuse and drug use. 49 C.F.R (2006). Upon a determination by the qualified company official that there is such reasonable suspicion, the driver is to be removed from all safety sensitive functions. 49 C.F.R (e) (2006). In administering an alcohol test for reasonable suspicion, the same two and eight hour attempts and recordkeeping duties as post-accident testing apply, but the time period begins to run upon the determination of reasonable suspicion. 49 C.F.R (e)(1) (2006). If the employee is removed upon determining reasonable suspicion for alcohol but no test showing a violation is actually given, the employee may return to safety sensitive duties only upon either a test showing

3 Page 3 a blood alcohol concentration of 0.02 or lower or the passage of 24 hours from the time of determining reasonable suspicion. 49 C.F.R (e)(2) (2006). Positive Test Results If any of the above tests show a blood alcohol concentration of 0.04 or above, use of controlled substances, or refusal to submit to either test, an employer must remove a violating driver from the performance of safety sensitive functions. 49 C.F.R (2006). If an employer wants the employee to return to duty, the violating employee must visit a substance abuse professional and comply with the substance abuse professional's evaluation and recommendation process. 49 C.F.R (2006). A substance abuse professional is defined as a licensed physician or one of the other certified or licensed professionals listed in 49 C.F.R The substance abuse professional's required duties include face-to-face initial assessment, referral to education or treatment, face-to-face follow-up, providing the designated employer representative with a follow-up testing plan, and giving the employer and employee recommendations for continuing education or treatment. 49 C.F.R (a) (2006). Return-to-duty testing is required if an employer is to allow a violating employee to resume safety sensitive duties. Such testing can only be administered after an employee has complied with the substance abuse professional's recommended program. 49 C.F.R (2006). In order for a violating employee to continue to perform safety sensitive duties, follow-up testing must be later administered after the employee returns to work, in accordance with the substance abuse professional's direction. 49 C.F.R (2006). Other drug or alcohol testing by the employer going on at the same time, such as random testing, will not satisfy the follow-up requirement. Id. at (c). Using a Third Party Service Agent An employer may use a third party for the administration of drug and alcohol testing, including doctors who interpret drug tests, breath alcohol technicians, or an administration consortium. 49 C.F.R (a) (2006). These third parties are collectively termed service agents. 49 C.F.R (2006). A covered employer must ensure all service agents meet the qualifications set forth in the regulations which are dependent on the service agent's function. 49 C.F.R (b) (2006). An employer, even if using a service agent, bears final responsibility for compliance with drug and alcohol testing regulations, and notably, good faith is not a defense. 49 C.F.R (c) (2006). Although a service agent substance abuse professional may make recommendations and requirements about treatment, and a service agent physician reviewing a drug test may determine a positive result, service agents may not make any employment decisions. The employer must designate an employer representative who is "authorized by the employer to take immediate action(s) to remove employees from safety sensitive duties... and make required decisions in the testing and evaluative process." 49 C.F.R (2006). The designated employee representative also acts as the recipient for test results and other communications for the employer. A service agent may not act as a designated employee representative. 49 C.F.R (d) (2006).

4 Page 4 Trucking companies often assume that since they have hired a third party administrator, they have satisfied their obligations under the regulations. An area of discovery that may be overlooked by claimants is the relationship and communications between the trucking company and the third party service agent. For example, discovery to show when the trucking company contacted the third party service agent after an accident will often show that the trucking company did not make this contact in a timely manner after the accident. Also, the trucking company often fails to work with the third party service agent to identify acceptable testing facilities within the geographic area where the accident occurred but then records as one of the reasons for lack of post-accident testing that there was no facility near the accident. Using FMCSA Regulation Violations to Prove Negligence Per Se and Punitive Damages If a claimant can establish that the trucking company and/or the driver violated the FMCSA regulations, that forms a foundation for a negligence per se or punitive damage claim. In Missouri, a negligence per se claim can be established by showing the following: (1) a violation, (2) the injured party must be within the class of persons intended to be protected by the ordinance or statute, (3) the injury complained of must be of the character the statute or ordinance was designed to prevent, and (4) the violation must be a proximate cause of injury. Sayers v. Haushalter, 493 S.W.2d 406 (Mo. App. 1973). The United States Supreme Court has recognized that the violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings. See Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308, , 125 S. Ct. 2363, 2370, 162 L.Ed. 2d 257 (2005). And at least one unpublished Missouri decision has recognized in dictum that the purpose of the federal motor carrier drug testing regulations is to protect the general public. Periman v. Lawson and Lawson Towing Co., 2001 WL (Mo.Cir. Oct. 16, 2001). By implication, injured motorists may be able to rely upon such violations and establish negligence per se under the right circumstances. A trucking company faces potential exposure to punitive damages in Missouri when the plaintiff can show that the company knew or had information from which it, in the exercise of ordinary care should have known that the alleged negligent conduct created a high probability of injury, and thereby showed complete indifference or conscious disregard for the safety of others. For example, a trucking company has been held liable for its employee s failure to secure a large steel plate where there was clear and convincing evidence that its failure to routinely require drivers to secure loose pieces of scrap metal created a high probability of injury and the company gave its drivers discretion in following laws (including federal motor carrier safety regulations) and industry standards, regarding covering and securing loads. See Coon v. American Compressed Steel, Inc., 2006 WL (Mo. App. W.D. 2006). Depending upon the facts, an accident caused by drugs or alcohol by an FMCSA-covered employer may lead to a similar result. In Flood ex rel. Oakley v. Holzwarth, the Missouri Court of Appeals, Southern District, held that evidence of methamphetamine use by the defendant employer's driver the day of the accident was among the evidence that tended to show the defendants conduct rose to the level that would justify imposing punitive damages, Flood ex rel. Oakley v. Holzwarth, 182 S.W.3d 673, (Mo. App. S.D. 2005). While this case did not turn upon the violation of FCMSA regulations, it highlights the relevance of such regulations to any potential punitive damages determination.

5 Page 5 CONCLUSION The FMCSA regulations regarding drug and alcohol testing are detailed and complicated. Understanding these regulations and seeking discovery to prove that trucking companies have not complied with the regulations can lead to essential evidence for claimants. For injured claimants, proof that the trucking company failed to follow the regulations can be used to support claims for negligence per se and punitive damages.