Lessons Learned: The DOT Medical Exam in Hiring

Unreasonable beyond this point.

A large Indiana-based trucking firm was fined $200,000 by the U.S. Equal Employment Opportunity Commission (EEOC) for its driver medical policies according to Crain Communications’ Business Insurance.

One error was having drivers undergo a DOT medical exam before making a *conditional offer of employment — a violation of the Americans with Disabilities Act (ADA).

(*Conditional offer of employment refers to an offer of employment that is dependent on the completion of certain conditions or passing certain tests.)

When should an organization employing DOT regulated drivers make a conditional offer of employment?

Best transportation-industry driver hiring practices include:

  • administration of a road test, and
  • (if a CDL driver) receiving the results of the DOT pre-hire drug test/screen

before making a conditional job offer. Once a conditional job offer is made, a candidate can then be asked to undergo a DOT physical or medical examination.

A second error by this carrier was asking disability-related questions before a conditional job offer was made. Once a conditional job offer is made, Federal law permits medically-related inquiries of drivers, if the questions are (1.) job-related, and (2.) consistent with business-related necessity.

 . . .if a job applicant volunteers such information, the interviewer is not permitted to pursue inquiries about the nature of the medical condition or disability. Instead, the interview should be refocused so that emphasis is on the ability of the applicant to perform the job, not on the disability.

Motor carriers should also be cautious of any broad medical-clearance policies as: a requirement to notify the company of any contact with medical professionals, or deploying overly broad medical-release forms.

Summary:

It is unlawful under the ADA to ask drivers questions about medical conditions and/or a disability before a conditional job offer is made. Steer clear of this topic in a pre-hire interview.

Medical records of all applicants and employees must be kept separate from all other personnel information.

Keep any employee medical records in a secure area (under lock and key) with limited access.

Be sure to review your policies, procedures and company manuals to comply with the ADA requirements.

To learn more, see The DOT Safety Audit Guide.

Thank you for reading this.

Driver Verification Fees

Running man

Is it legal to charge a fee for verification of a prior drivers employment/accident/drug history? I have heard yes and I have heard no.

Charging a de minimis fee for driver verification is a long established industry practice. Some carriers charge and some do not.

De Minimis, by the way is an abbreviated form of the Latin Maxim — de minimis non curat lex — or “the law cares not for small things.”

Guidance from the DOT says:

§40.25                                                                                 11/03

QUESTION:

May the previous employer delay sending an employee’s drug and alcohol testing information to the gaining employer pending payment for the cost of the information?

ANSWER:

• No. Part 40 specifically requires that previous employers immediately provide the gaining employer with the appropriate drug and alcohol testing information.

• No one (i.e., previous employer, service agent [to include C/TPA], employer information / data broker) may withhold this information from the requesting employer pending payment for it.

If a driver fails or is not recertified for a DOT Medical Certificate?

What are the rules, if a driver fails or is not recertified for a DOT Medical Certificate, due to the particular type of medicine he is on?

A Medical Examiner’s Certificate, which is also known as a DOT Medical Card, is required for every Commercial Motor Vehicle (CMV) driver. The card is issued by a DOT Medical Examiner after a “DOT physical examination.” A driver is asked to fill out a form called a “Medical Examination Report for Commercial Driver Fitness Determination,” also known as the “long form” which details the driver’s medical history and lists all current medications. To show that the driver is “fit” or medically qualified to drive, the card is required to be carried by all CMV drivers (and CDL drivers until at least January 30, 2015). This information will become part of a driver’s motor vehicle record (MVR) when the CDL driver “self-certifies” or updates the information at his Department of Motor Vehicles (DMV). Carriers and organizations should retain a copy of the card for the driver’s qualification file (QF). For most drivers, this card is valid for a period of two years. Before the expiration date of the card, the driver should recertify with another DOT examination.

If there is a change in a driver’s health status, the driver may be medically unqualified to drive and the card would become invalid. Here are a few actual situations concerning a driver’s health status:

Example 1:
A CMV driver had a “sleep study” at a sleep clinic and left for a two week trip. When he was 351 miles from home, he was informed that he was diagnosed with sleep apnea. He informed his dispatch of the results of the sleep study. The driver was told to secure and clean out the truck, then load his personal belongings on a Greyhound bus and return home. The driver was off work for four weeks waiting for a sleep study appointment, then getting his CPAP machine. He was on the CPAP for 7 days before a DOT Examiner certified and released him to return to work as a CMV truck driver.

Example 2:
A CMV driver had a mild cold. He did not see a doctor or take any medication or over-the-counter cold medication, as he felt he did not need it and the mild cold did not impair his driving. As such, his medical card was in effect and no other action was required.

Example 3:
A CMV driver with a chronic medical condition was issued medication with the warning on the bottle saying “DO NOT OPERATE HEAVY EQUIPMENT.” When the driver began taking the medication, he was not medically qualified to operate his truck and the medical card became invalid. The driver should see a medical examiner for a new card, if his medical condition improves and that particular medication is not needed.

Example 4:

A CMV driver was helping a friend on the weekend do a roofing job. His ladder slipped as he started to climb, he was knocked out and taken to the hospital. In his state, “a loss of consciousness” means “loss of all driving privileges” for six months. The driver should see a DOT Examiner for an examination after the mandatory six month period.

If a driver experiences a change in his health status, he may be medically unqualified to operate a CMV. He should consult with appropriate medical professionals before resuming to drive a CMV.

CSA EFFECTS

A DOT medical card (Part 391) violation falls under the Driver Fitness SMS BASIC Category in CSA. Violations in the Driver Fitness BASIC are the cause of 9% of DOT Interventions/ Investigations according to Patti Gillette of the Colorado Motor Carriers Association. There are 30 Driver Fitness violations that can affect your CSA scores according to the Table of Driver Fitness BASIC Violations.

A driver cited for failure to carry a medical card (Part 391.41) adds 3 points to the CSA score (1 point times a CSA Time Weight of three = three points). Violation of 391.41A No Medical Card in Possession continues to be a top violation year after year. Best Practice: keep a photocopy of the card in the truck.

A driver with a history of driving without a valid medical card (no card in possession or an expired card in possession) may be placed Out Of Service (OOS), which would add another six CSA points (2 points times a CSA Time Weight of three = 6 points), as of April 1, 2012, according to the North American Standard Out-of-Service Criteria (OOSC).

CSA points follow carriers for 24 months, but fall off over time:

Time Weights (Carriers)
0-6 months old = 3
6-12 months old = 2
12-24 months old = 1

SUMMARY

CMV drivers need to carry or keep a copy of a valid DOT medical certificate with them when driving (CDL drivers until at least January 30, 2015), and recertify their certification before their current DOT Medical Certificate expires. CDL drivers need to make their medical certification a part of their CDL driving record.