Saturday, September 3, 2011

According to Uncle Sam, I can't employ alcoholics. Or fire them.

The U.S. Department Of Transportation is rolling out a program called CSA 2010 (Compliance, Safety, and Accountability - 2010).  They're having problems implementing the program because doing this kind of thing requires basic competence, which they ain't got.  People with a sense of humor now call it CSA 2011.  The Department Of Transportation has had some structural problems with the program. 

CSA 2010 is the most comprehensive driver safety program ever imagined on this, or any other planet.  Here are the rules on Alcohol Testing:

The FMCSA regulations require alcohol and drug testing of drivers, who are required to have a CDL. The DOT rules include procedures for urine drug testing and breath alcohol testing. Urine drug testing rules were first issued in December 1989. In 1994, the rules were amended to add breath alcohol testing procedures. In the years following the implementation of the drug and alcohol testing requirements, a number of factors including changes in testing technology, and the issuance of a number of written interpretations, required OST to review and revise the rules. Blah blah blah blah blah, you're not really reading this, are you?  In December of 2000, OST published final rules that incorporated these factors, as well as input from the public sector, into the existing drug and alcohol testing regulations. In August of 2001, the FMCSA revised modal specific drug and alcohol testing regulations published in 49 Code of Federal Regulations Part 382 to reflect the revisions made by OST.

Why would drivers need to occasionally pass a sobriety test?  Well, to see if they're driving drunk. 

I recently had to attend a one-hour seminar on Drug and Alcohol Awareness.  The goal was to train me to detect if a driver was drunk, or had been drinking.  I've got to sit through it every year, despite the known fact that I don't pay my drivers enough for them to purchase alcohol.  

This CSA 2010 thing is a big big deal.  I'm plagued every week by consultants, seminar providers, and software salemen who have kits and programs that will help me cut through the confusion that is built into the program.  (We've purchased a good one, BTW.) 


But hold on a minute.  Not everyone in Washington has gotten the message.  This is from the Heritage Foundation website.  The EEOC has declared that Old Dominion Freight Lines cannot fire alcoholic drivers. 

The federal government has sued a major trucking company for its firing of a driver with an admitted alcohol abuse problem.

Alcoholism is classified as a disability under the Americans with Disabilities Act, the suit maintains, and therefore employees cannot be prohibited even from driving 18 wheelers due to their histories of abuse.

The Equal Employment Opportunity Commission, which filed the suit against the Old Dominion Freight Line trucking company on August 16, noted that while “an employer’s concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA.”

So how does an employer ensure safety and comply with the Americans with Disabilities Act?  Maybe the driver has gotten into a program and cleaned up.  But if he has a relapse and Old Dominion doesn't know about it, Old Dominion will still be liable if they let this guy drive and he drives the big rig into a school bus. 

Here's a suggestion....  Let's trim it all back to the bare bones.  Let's nuke the CSA non-programs.  If Old Dominion employs an alcoholic driver who hits the school bus, Old Dominion can be taken into court and sued for every penny they've got.   That's the program we need. 

Old Dominion's hiring and firing decisions should be left up to Old Dominion.  If they purchase alcoholic labor, they're going to have safety problems and they should be held responsible.  OD should be free to make that purchasing choice, just like you have a choice in where or how to purchase groceries, gasoline, education for your children, dog food, TV sets, light bulbs, or clothing. 


Nick said...

Impeccable points, all. The collision of two federal laws/regulations is always a rubbernecker's delight.

In the Army we had a fair system, and it was in place long before ADA. People caught drunk driving or drunk on duty were punished with official letters of reprimand and likely nonjudicial punishment. This usually didn't get you "fired" per se, but you could be barred from reenlistment, goaded not retirement, or otherwise not retained.

We had random urine tests once a year and they could always order a test on probable cause. If an officer or high ranking NCO was caught using drugs, it was usually a career ender. Lower enlisted folks usually got a second chance.

In any case, if you knew you had a alcohol or drug problem, you could check into the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). You'd go through whatever treatment plan was appropriate for your problem. If you abused drugs or alcohol during or after the program, you could be separated for failure of the program.

It was a good balance of zero tolerance with a chance for redemption, and plenty of resources to help.

But, of course,the Army doesn't have to pay liability insurance, risk losing its license to practice, or worry much about lawsuits. Sure, the Army has a claims system and lawsuits affect its budget, but not to any meaningful degree.

They certainly don't (unless I've missed something) have to keep someone who is an alcoholic.

We always think of the military having draconian rules, but in many ways the enforcement of its rules is more fair, consistent, involves due process, and has checks and balances. I've discovered other government agencies don't quite meet that standard.

The Whited Sepulchre said...

In other words, in this case the right hand doesn't keep up with what the left is doing. Hit the tab at the end of this post for "craniofacial duplication".