US DOT Announces Final Rule Banning Texting While Driving by Commercial Motor Vehicle Operators: OSHA Joins In to Battle "Distracted Driving"

Posted on September 23, 2010 by Mike Underwood

On September 21, 2010, the Federal Motor Carrier Safety Administration ("FMCSA"), an agency of the U.S. Department of Transportation, announced a final rule banning commercial vehicle operators from texting messages while driving. An earlier post on this site described the notice of rulemaking. At the September 21st "National Distracted Driving Summit," FMCSA announced that the final rule will be published "soon" and will take effect 30 days after publication.

It is anticipated the final rule will track closely with the rule as originally proposed and will ban "texting," defined broadly to include generating and reading any sort of text message from an electronic device. The ban will not include using a cell phone, including to read, select, or enter a telephone number. The ban will apply anytime the driver is operating a commercial motor vehicle, including while the vehicle is temporarily stopped because of traffic, traffic lights, or for other momentary delays. The ban will not apply when the driver has moved the vehicle to the side of the road or parked safely. Drivers may be fined up to $2,750 and their employers up to $11,000 for violations. Drivers guilty of multiple violations will have their commercial licenses suspended.

In the same summit meeting, Secretary of Labor Hilda Solis announced that OSHA will join DOT in a concerted effort to address distracted driving in the workplace. Secretary Solis announced a "multi-pronged initiative" for OSHA that includes an education campaign for employers, an open letter to employers on OSHA's web site during "Drive Safely Workweek," model employer policies, and the issuance of citations and penalties if an employer requires texting while driving.

OSHA's enforcement authority reaches all private sector employers, not just commercial vehicle operators. OSHA has not developed a specific OSHA standard regarding texting while driving. But, the Secretary's remarks make clear that OSHA will consider issuing citations, at least where employers are actively encouraging or requiring texting while driving, under its "general duty clause." OSHA issues general duty clause citations where OSHA feels there is a hazard well recognized in an industry and the employer fails to address the hazard. 
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DOT Direct Observation Requirements Go Into Effect on August 31st

Posted on August 6, 2009 by Brian Hall

On July 30, 2009, the Department of Transportation issued a final rule reinstating the direct observation drug testing procedures recently approved by the U.S. Court of Appeals for the District of Columbia. The final rule, which goes into effect on August 31, 2009, requires that all return-to-duty and follow-up tests be conducted in a manner that permits the direct observation of specimen collection to prevent the use of prosthetic or other cheating devices.

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D.C. Circuit Upholds "Direct Observation" Requirements for USDOT Return to Duty and Follow Up Testing

Posted on May 22, 2009 by Brian Hall

In a decision released May 15, 2009, the U.S. Court of Appeals for the District of Columbia upheld a Department of Transportation (DOT) regulation that requires employees who are returning to safety-sensitive duties after having completed a drug treatment program due to failing or refusing to take a drug test, to submit to return to duty and follow up testing under "direct observation" conditions. This decision and the regulation it upholds applies to employers in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries that are subject to the DOT drug-testing regime. Under the regulation’s "direct observation" procedures, the employer must require a same-gender observer to “watch the urine go from the employee’s body into the collection container.” To comply, employees must raise their shirts above the waist and lower their clothing so as to expose their genitals and allow the observers to verify the absence of any devices that would permit the employee to cheat the test. 

Previously, the employer had the option to require direct observation, but this was not mandatory under the former regulation. Concerned that employers were reticent to require direct observation and in light of the rise in commercially available devices, such as the "Whizzinator," that enable people to cheat on their drug tests, the DOT promulgated this new regulation requiring direct observation for all return to work and follow up tests conducted under the DOT's auspices as of November 1, 2008.

Several transportation industry unions and the BNSF Railway Company challenged the new regulation, and the D.C. Circuit issued a stay of the direct observation requirement back on November 12, 2008. Impressed with evidence that demonstrated the growth of an entire industry focused on circumventing drug tests, coupled with evidence that employees that previously had tested positive or refused drug testing presented an elevated risk of cheating, the court in its May 15th decision found that the DOT had justified the direct observation requirement.  From a constitutional standpoint, the court also found that "given the combination of the vital importance of transportation safety, the employees’ participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures, ... the challenged regulations [are]facially valid under the Fourth Amendment."

At the conclusion of its decision, the court emphasized that, because this case presented only a facial challenge to the direct observation requirement, the court considered only “whether the tests contemplated by the regulations can ever be conducted.” The court expressed no view on either the merits of "any as-applied challenge to this rule" or the constitutionality of any other rule. As such, employers that will be governed by the direct observation requirement would be wise to ensure that, given the intrusion into privacy necessarily associated with the requirement, all persons or entities that conduct such tests on their behalf are properly trained in the DOT regulations and procedures and that they conduct such tests consistent with those regulations and procedures in a professional manner that preserves as best as possible the dignity of the testing subject.
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