Waynes World - August 2006

CLEARING UP SOME CONFUSION ABOUT DOT
PHYSICALS AND DRUG TESTS, AND...

LEGALLY STRETCHING THE
HOURS-OF-SERVICE LIMITS
By Wayne Schooling

DOT PHYSICALS & DRUG TESTS
There is often confusion about the DOT physical and whether or not a routine drug test should accompany the exam. It is important to note that the DOT medical exam is not exclusive to just commercial drivers license holders. It is applicable to drivers who operate the following vehicles as defined in 390.5: Commercial motor vehicle is any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle: 1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight of 10,001 pounds or more, which ever is greater; 2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; 3) Is designed or used to transport more than 15 passengers (including the driver) and is not used to transport passengers for compensation; 4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding.

As you can see, this definition includes both CDL and non-CDL types of vehicles. Based on this alone, DOT drug and alcohol tests cannot be conducted on a great number of drivers who are subject to DOT physical requirements. DOT drug and alcohol testing is only applicable to individuals operating a CMV, as defined in 382.107 and 383.5.

Many motor carriers, out of convenience, send a driver for a DOT pre-employment drug screen at the same time as the DOT physical. Technically, a carrier could send the driver to two separate locations on two separate days, since the requirements are not tied together. Many motor carriers use medical clinics for their physicals and drug tests and this could lead to problems because when an existing driver goes in for a recertification of his/her DOT physical, a DOT drug test should not be conducted. It would be a misrepresentation of the test as being required under Part 382.113.

Prior to the creation and implementation of Part 382, DOT drug testing was positioned in Part 391, Subpart H. Much of today’s confusion comes from these regulations that have been removed from Part 391 and cease to be a requirement. In the past, a DOT drug test was required at the time of a physical recertification. However, this was removed from the regulation when Part 382 was implemented on 1/1/95 for carriers with more than 50 drivers and 1/1/96 for carriers with less than 50 drivers. If a carrier requires a drug or alcohol test during recertification of physical requirements, the test must be presented to the driver as a non-DOT test under their company policy.

Consider the following of non-DOT testing: 1) It is important to inform the clinic that the test be conducted outside of your DOT program; 2) By keeping the two testing programs (DOT and non-DOT) separate, the non-DOT test results will not appear on the lab summary for DOT compliance; 3) If a driver tests positive or refuses to be tested on a non-DOT test, it holds no DOT consequences under the Return-to-Duty Process and is not considered a DOT violation. The driver’s ability to continue in a safety-sensitive function is not affected. Any actions taken by the motor carrier would be based on their written drug and alcohol policy and under their independent authority. In addition, the carrier cannot report a non-DOT offense to new or prospective employers during background checks under 40.25 and 391.23. It is strongly suggested that you contact a labor attorney before releasing any non-DOT information.

HOURS-OF-SERVICE WORKING LIMITS
The federal hours-of service rules say that you must stop driving a commercial motor vehicle (CMV) upon reaching certain specified limits, including the 11-hour driving limit, the 14-consecutive-hour limit, the 60 or 70-hour weekly limit, and others. But do you have to stop working? People often confuse the driving limits with working limits. The fact is, the Federal Motor Carrier Safety Regulations do not directly restrict how much work people can do, as long as they obtain enough rest before getting back behind the wheel.

For example, the 11 and 14-hour limits, found in 49 CFR 395.3(a), clearly states that you cannot “drive” a CMV after reaching those limits. Nowhere does the rule say you have to stop working or that you cannot operate other types of non-CMV vehicles. Following are two exceptions, but if you wish to claim either, you still have to stop working within a certain period of time (see the regulations for details):

Short-haul exception – found in 395.1(o): This exception to the 14-hour limit allows the driver of a property-carrying CMV who returns home each day to drive after the 14th hour of coming on duty, but not after the 16th hour, once per week. However, when using this exception, the driver must be released from duty within 16 consecutive hours after coming on duty. So if the driver chooses to use the exception but continues working (not driving) beyond the 16-hour limit, the driver is in violation of the rules. Note that the “non-CDL 16-hour exception” for drivers who stay within a 150-air-mile radius and who are not required to hold a CDL, under 395.1(e)(2), does NOT require the driver to be released from duty within a certain time period, as long as there is no CMV driving after the 16-hour limit.

100-air-mile radius exception – found in 395.1(e)(1): This exception allows drivers who stay within a 100-air-mile radius to use time records instead of records of duty status (logs). A driver who chooses to use this exception, however, must be “released from work within 12 consecutive hours.” This means that no work of any kind can be done for the motor carrier after those 12 consecutive hours are complete, until the driver obtains adequate rest. But what if there is work to be done? A driver can continue working after the 12-hour limit and avoid a violation simply by completing a standard log for the day.

NOTE: The above information is based on the federal safety regulations and may not apply in every state. Check with your state for details if you are not subject to the federal rules.