Monday Morning Alert for Safety Professionals
February 27, 2017
MANAGING POST-ACCIDENT ALCOHOL & DRUG TESTING ISSUES
Perhaps the most challenging requirement of the FMCSA's Alcohol & Drug Testing regulations is post-accident testing. The requirement, set forth at 49 C.F.R. §382.303, is straight forward enough: A trucking company must ensure that its driver submits to post-accident testing if the crash involves 1) a fatality; 2) bodily injury requiring immediate medical treatment away from the scene of the accident, but only if the driver receives a citation; and 3) one or more of the vehicles being towed from the scene due to disabling damage, but only if the driver receives a citation. Both alcohol and drug testing must be done "as soon as practicable" after the company learns the accident meets one of the three criteria. However, if the alcohol test is not administered within two hours of the crash, the company must "prepare and maintain on file a record stating the reasons for the delay. If the alcohol test is not administered within 8 hours of the crash, or the drug test is not administered within 32 hours of the crash, the company must "prepare and maintain on file a record" stating the reasons why the test was not administered. Drivers need to remain available for testing, and the failure to remain available for testing may be considered a refusal to test.
While the requirement is straight forward enough, logistic and communication issues immediately present challenges to the motor carrier. Accidents are by their nature unpredictable and may occur outside the normal working hours of the safety department and in remote locations. Many hours may pass before the trucking company can even confirm that the accident involves a fatality or meets the other criteria for post-accident testing. Communication with the driver may be very limited if not impossible, as the driver may be hospitalized or is being treated for injuries, or may be in the custody and control of law enforcement, even if the driver is not formally arrested.
Trucking companies can do a couple of things to help meet these challenges and ensure compliance with the post-accident testing requirements. First, all companies should have established post-accident policies and procedures that set forth a driver's post-accident responsibilities regarding conduct at the scene and communication with the company. Drivers should be well-trained on these policies and procedures, including the driver's post-accident testing obligations. Second, all companies should have an established point person, usually the safety director, to manage the accident and communications with all players, including the driver, law enforcement, insurers, and others. Third, all activities related to the accident need to be logged, with the date, time, location, names, telephone numbers, etc. and a description of the nature of the communication or activity.
If the accident involves a fatality or is otherwise significant, law enforcement may conduct their own post-accident alcohol and/or drug test. Such testing will meet the requirements of 49 C.F.R. §382.303 if the company obtains the results. Whether and when law enforcement will release the results varies widely depending on the jurisdiction and the nature of the post-crash investigation. Therefore, it is recommended that the company conduct its own testing whenever possible, even if the company was told that law enforcement conducted a test.
Remember too, if for whatever reason the alcohol test is not performed within 8 hours or the drug test is not performed within 32 hours, the regulations require that you cease attempts to have the driver tested. A post-accident alcohol test conducted more than 8 hours after the accident and a post-accident drug test conducted more than 32 hours after the accident violate the regulations and are not FMCSA-sanctioned tests. If the tests were not conducted within the permissible time frames, your only option is to "prepare and maintain on file a record" stating why the test was not promptly administered. This record should provide specific detail on the efforts to have the driver tested and explain why those efforts were not successful. If you have kept a detailed log documenting these efforts then preparing the required record is rather easy.