Time to Update Your Drug & Alcohol Policy
Without fail, almost every news broadcast these days includes a segment on either the growing Opioid epidemic, or the legalization/decriminalization of cannabis. This dichotomy poses more emerging variables for trucking companies to consider (and address). This past Tuesday, an Arkansas based driver admitted to smoking cannabis and snorting crushed pills just hours before rear-ending three vehicles, and crashing into the back of a trailer on I-57 near Champaign IL. The reality is that there are many drivers who do drugs to either stay “alert”, or perhaps just to pass the time while they are away from home. Most likely, you probably already have a drug and alcohol policy and are doing random urine tests, but have you updated your policy to handle the new realities? If you haven’t, you are putting your business at risk.
Recently, several states have enacted either recreational marijuana use statutes (9 states) or have decriminalized it’s use (13 states). 29 states allow medical use (with a doctor’s prescription). Others are considering enacting such laws. However, cannabis remains a Schedule I substance and is illegal under Federal law. Attorney General Jeff Sessions rescinded the Cole Memorandum in January, removing any protection against the enforcement of federal law in states that have legalized the use of cannabis. So, what is a trucking company supposed to do?
To start with, impairment is impairment, regardless of if the substance is “legal” or not. Alcohol is a legal substance, but we do not allow employees to come to work impaired – cannabis is no different. Cannabis is on the list of products that a truck driver can be tested for (the others are cocaine, opiates, amphetamines/methamphetamines and phencyclidine (PCP)). So, the law is clear – if you want to do interstate trucking marijuana use is a no-no. Unfortunately, not everyone is getting the message. Commercial Carrier Journal this week reported that positive test results for cocaine, methamphetamine and cannabis use have all been increasing have been rising for the last five years.
You may have recently seen that the Trucking Alliance is pressuring Congress to allow the use of a hair sample test instead of the current urine sample test requirement. The reason for this is that opioid use may not be detected after only a few hours whereas hair screening can detect use within the last 90 days. Currently some of the larger companies are using hair samples in addition to the required urine testing when they are hiring. Unfortunately, not everyone has this available to them yet. This is a vital tool that every company needs to protect it’s both interests and the safety of the public. The current testing only shows if a driver has used one of the substances recently. Hair testing will let us know if they are a user, something that they can currently hide.
Regardless of what testing is available, we all need to have strong company policies that not only explicitly prohibit recreational drug use but also spell out the penalties and treatment options should an infraction occur. The issue is that there is a patchwork quilt of state regulations and or human rights considerations, so you will want to engage both your state trucking association as well as your legal advisor for guidance on what you can or must do. However here are a few general things to consider.
First, find out what your legal requirements are. Do you need to offer rehabilitation services or does your state allow you to terminate even for a first offence? Is there a union contract involved? If yes, make sure that the language in your policy is in line with it and make certain that your next contract addresses it.
Second – make sure your policy is recent. The courts do not look favorably on policies that are years out of date. Because of the changes happening Policies should be reviewed at least once a year and the review needs to be documented. Additionally, have your employees sign off on it, preferably on an annual basis. Ideally you will also provide a training session for all employees, not just to review the policy but to also educate them on the risks to both the company and their own jobs that drug impairment can bring. Reinforce to them their own roles in keeping the workplace safe. DOT fleets are already required to give supervisors training on spotting potentially impaired employees but give some thought on expanding that so that all employees know the warning signs.
Third – do not assume that your employees will remember that federal DOT regulations trump any state statutes around recreational drug use. The reality is that for some people the slogan “just say no” doesn’t work. Consider spelling out certain drugs that prohibited (while also including some catch-all wording for substances not specifically named), but if you do make sure that it is kept up to date and that you have employees sign off whenever a new substance is added to the list. Also remind them of any prescription medications that can also cause impairment. Consider having alternative duties for employees who have a medical requirement to take these medications. Regardless of the cause of the impairment, your company could be found liable should an incident occur while an employee is under any level of impairment.
Fourth – consider conducting other forms of testing, especially during the hiring process. Yes, it is an additional cost, but it may be a less expensive form of insurance against potential liability. Additionally, it provided more evidence of due diligence that can be used as a defence should you be brought into court. If you do use other test, be sure to include that in your policy.
Finally, make sure your policy prescribes recommended sanctions to be taken against employees that do report to work impaired or fail a random test. Be prepared to monitor compliance with these penalties and document all instances. This must be something that gets 100% compliance. Ensure that supervisors do not make exceptions – you can’t just feel sorry for someone and “let them off this time”. Making exceptions opens the door for appeals and potentially could be used against you should a law suit be filed.
Overall the formula is simple – have a policy, keep it up to date, train and document that all employees are aware of the policy and its penalties and finally ensure that management has “bought into” the policy. The world is changing and not all state legislatures are taking our industry into consideration when new laws are enacted. It’s up to us to make sure that we not only keep the public safe but to also take steps to our liability when someone inevitably violates our policies.