Two Driver Rule Petitions That Could Change Off-Duty and CO Detection

Off-duty randoms, CO detection: Where two recent driver-led rule petitions might be headed

Two petitions from truck drivers are now under consideration by the Federal Motor Carrier Safety Administration, including one seeking to prevent carriers from ordering random drug tests when drivers are off duty and another asking for carbon monoxide detectors in sleeper trucks.

FMCSA confirmed that both petitions, along with more than 30 others, are posted on the agency’s petitions website. The agency said it reviews every petition it receives, but interested parties cannot yet submit public comments on these requests.

FMCSA can grant or deny a petition without opening a public comment period. If the agency grants either request, it would then have to begin the rulemaking process, including publishing a proposed change and accepting public comments before reaching a final decision.

Petition follows a driver’s Clearinghouse dispute

Truck driver Nathan Weidert filed the petition seeking a rule that would bar carriers from requiring random drug tests while a driver is off duty. He said he had not received a direct update from FMCSA on the petition’s status before the agency confirmed that it was under official consideration.

Weidert’s request grew out of a dispute involving seasonal employment. He had reached the end of a contract term with a carrier, and no additional work had been scheduled. The carrier nevertheless selected him for a random drug test.

Weidert said he objected because he was no longer working for the company. The carrier reported the matter as a refusal to test to the federal Drug and Alcohol Clearinghouse, which prevented him from continuing to operate until he completed the return-to-duty process.

According to Weidert, he was also working for another employer at the time. In a letter posted to him in August, FMCSA Administrator Derek Barrs said the agency confirmed that Weidert was actively working for the second employer when the first employer ordered the test.

“FMCSA determined that you could not have reasonably submitted to a DOT random drug test … under the specific facts of your case,” Barrs wrote, according to the letter. The agency granted Weidert’s request to correct the Clearinghouse record under the Privacy Act.

The correction restored his record and CDL to good standing, but Weidert said the process remained costly and burdensome. His experience has also drawn attention from drivers who say random test notifications during home time or other off-duty periods can create significant scheduling problems.

What the rules currently say

Under the current federal rules, Part 382 does not generally prohibit an employer from notifying a driver of a random controlled-substances test while the driver is off duty. Drivers in safety-sensitive positions remain subject to unannounced drug testing.

Once notified, a selected driver is expected to proceed immediately to the collection site. Federal guidance says employers should notify drivers and conduct testing as soon as possible after selection, generally at the driver’s first available time at a terminal or other appropriate location.

A delayed arrival can be treated as a refusal to test. Refusals carry consequences comparable to positive tests and are reported to the Clearinghouse. Missing a test, tampering with a specimen or failing to provide a sufficient sample without a valid medical explanation can also be treated as a refusal.

The rules make an important distinction for drivers who are ill, injured, laid off, on vacation or on an extended medical absence. If a selected driver is unavailable for those reasons, the employer must document the circumstances and the driver’s inclusion in the random pool. The employer is not supposed to notify that driver to report for testing while the driver remains off work for one of those reasons.

The employer can keep the selection confidential until the driver returns, provided the driver is notified and tested before the end of the selection period. If the driver will not be available during that period, an alternate may be selected. Employers must still meet the required annual testing rate.

Random alcohol testing is more limited. It can occur only while a driver is on duty or immediately before or after the driver’s performance of safety-sensitive functions.

The timing of a drug test also matters. If a driver is selected during one quarterly selection period but does not complete the test until the next quarter, the driver is considered out of compliance with the selection-period requirement. The test may still count toward the pool’s annual testing requirement if it is completed during the same calendar year.

A separate petition addresses carbon monoxide

The other driver-led petition was submitted by Todd Daum. It asks FMCSA to establish a requirement for carbon monoxide detectors in sleeper trucks.

The petition is listed with the agency’s other active petitions, but the information available does not indicate whether FMCSA has decided to pursue a detector requirement or what technical standards such a rule might contain. As with Weidert’s petition, the agency could grant or deny the request without public comment, or move it into a formal rulemaking process.

The two petitions address different safety concerns, but both illustrate how individual drivers can bring operational problems to the federal regulatory process. For now, neither request has changed the rules. Random drug-testing requirements, Clearinghouse consequences and existing carbon monoxide safety obligations remain in effect while FMCSA reviews the petitions.

For drivers, the immediate concern remains compliance with current testing requirements. A positive drug test, including a positive THC result, can prohibit a driver from performing safety-sensitive work until the return-to-duty process is completed. That process may include a substance-abuse professional evaluation, treatment, return-to-duty testing and unannounced follow-up testing for at least 12 months.