All transportation employers, including maritime companies, will have to obtain drug and alcohol test histories for new employees in safety-sensitive functions, says the U.S. Department of Transportation.
The decision, which came after review of objections raised by the maritime industry, reaffirms a long-standing rule for the trucking industry.
Albeit confusing and sometimes frustrating, the regulations are familiar to trucking. Since drug and alcohol tests were mandated, motor carriers have been required to get drug and alcohol test information from the previous employers of all drivers they hire. The rules don’t say that a carrier can’t hire a driver who has previously tested positive for controlled substances, or failed a DOT alcohol test, but they do say that motor carriers must make sure the driver has satisfied all return-to-work requirements, including evaluation by a substance-abuse professional, completion of prescribed treatment, and follow-up testing.
Last year, DOT extended similar requirements to all transportation industries. “We did so because it is very important, as a matter of safety, for employers to know whether new employees they are hiring have complied with drug and alcohol testing requirements, especially return-to-duty requirements,” the agency said. The information, it added, is particularly important to industries with high turnover, such as trucking and maritime.
“If an employer tests positive for Employer A, quits or is fired, and then applies for work with Employer B without having completed the required return-to-duty process, Employer B could unknowingly allow the employer to perform safety-sensitive functions despite being prohibited from doing so by DOT rules,” it said. “This is a situation in which ignorance, far from being bliss, become a threat to transportation safety. It also places Employer B in noncompliance with DOT rules.”
The agency recently reopened the issue at the request of several maritime organizations. Following are some arguments against the rule, and DOT’s response.
Drug/alcohol test history inquiries would delay hiring. As DOT pointed out, the regulation says that “if feasible” the information must be obtained before putting the applicant in a safety-sensitive function. If that’s not feasible, the employer has 30 days after hiring the applicant to either get the information or at least make a documented good faith effort. (Trucking companies, it should be noted, have only 14 days under Federal Motor Carrier Safety rules).
The trucking industry doesn’t fully comply with similar requirements, so other industries shouldn’t be asked to comply. DOT acknowledged that compliance with this and other safety regulations is “less than perfect,” which is why agencies such as the Federal Motor Carrier Safety Administration have inspectors. However, it added, “the potential for some noncompliance does not invalidate the rationale for a requirement.”
Pre-employment drug/alcohol test history inquires are illegal, a violation of the American with Disabilities Act, unconstitutional, discriminatory, or a “draconian invasion of privacy.” DOT pointed out that the inquiries are made only with the employee’s written consent. Moreover, inquiries to determine if someone has complied with safety regulations “in no way violates the ADA,” it said.
It’s enough to have a new hire pass a pre-employment test. “Permitting an employee to test positive one day, ignore return-to-duty requirements, apply for a job with another company the next day, and pass a pre-employment test the day after and start work in a safety-sensitive position, undermines not only department’ drug testing program but, more importantly, transportation safety,” DOT responded.
It’s too expensive. DOT said that most who posed this argument failed to provide adequate data to back the claim. Moreover, it received comments from some non-maritime industries asserting that the cost is minimal. The agency also pointed out that the rule simply requires employers to request test results from previous employers. It does not mandate more expensive background checks from professional agencies.
