Do you have any obligations under the FMCSRs for trace amounts of alcohol in a driver’s system?
By: Kathy Close
Publication: Transportation Security & Risk Management Today
Date Posted: 01/29/2018
Suppose you have a driver that is sent for a random alcohol test under your DOT testing program. The collection site reports an alcohol concentration of less than .02. What are the ramifications?
As a starting point, you need to look at the prohibitions in Subpart B of Part 382. These prohibitions require removal from a safety-sensitive function and placement in a DOT return-to-duty program in accordance with Sections 382.501 and 382.503.
According to Section 382. 201, “No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.”
Next, we should read Section 382.505, “Other alcohol-related conduct,” which focuses on a driver that has an alcohol concentration of .02 or greater but less than .04 on a DOT test. It is not a part of Subpart B, so it is not a prohibition, and the driver is not subject the same consequences of an alcohol concentration of .04. But the driver does have consequences. The driver cannot perform a safety-sensitive function again, according to Section 382.505(a), “…until the start of the driver’s next regularly scheduled duty period, but not less than 24 hours following administration of the test.”
The employer is cautioned that it cannot take any other action against the driver based on the authority in Part 382. However, the employer is not prohibited from taking actions based on its independent authority so long as they are consistent with law.
The Federal Motor Carrier Safety Administration never addresses an alcohol concentration less than .02 other than to provide the following DOT Guidance to Section 392.5:
Question 4: Would an alcohol test, performed by an employer pursuant to 49 CFR part 382, with a result greater than 0.00 BAC, but less than 0.02 BAC, establish that a driver was in violation of 49 CFR 392.5(a)(2), having any measured alcohol concentration while on duty?
Guidance: No. The FHWA believes that a 0.02 BAC is the lowest level at which a scientifically accurate breath/blood alcohol concentration can be measured in an employer-based test under part 382. The FHWA further believes that this use of a 0.02 BAC standard is consistent with FHWA’s long established zero tolerance standard for alcohol. This guidance in no way impedes or precludes any action taken by a law enforcement official because of a finding that a BAC level was less than 0.02 BAC.
Based on all the information provided, the employer is not required to take action in such cases of an alcohol concentration of less than .02 since DOT does not see it as scientifically accurate. Any actions would be based on company policy.
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