msb

It seems like simple common sense that trucking companies should not put drivers on the road who are known to have drinking problems. A google search for the words “drunk truck driver verdict,” reveals million dollar and multi-million dollar verdicts against drunk truck drivers and the companies that employed them. Most motor carriers refuse to hire or retain drivers with alcohol issues. Common sense suggests that no one would criticize a motor carrier for terminating a driver with an admitted drinking problem. Motor carriers are not required to return an alcoholic driver to a safety sensitive position even if the driver has been treated for the alcohol problem. See, 49 CFR 40.305. Motor carriers would seem to have the discretion to make this decision. Common sense does not always prevail. The EEOC is focused on the rights of the disabled, not highway safety and as a result, they take a different view on this issue. The EEOC contends that a trucking company can’t take an alcoholic driver off of the road without determining, based on individual factual data, that the driver presents a high probability of substantial harm. In fact, the EEOC recently sued Old Dominion Freight Line, Inc. claiming it violated the Americans with Disabilities Act (“ADA”) by terminating a driver who reported he had a drinking problem, but then declined to complete treatment because it was too expensive. The jury in that case awarded the driver $119,612.97 in back pay. The EEOC stated through its General Counsel, “. . . the ADA requires that Old Dominion make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.  To maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving — with no individualized assessment to determine if the driver could safely be returned to driving — violates the ADA.” While this almost sounds reasonable, consider the consequences if Old Dominion had put this driver back on the road with a known alcohol problem and if this driver had a relapse and killed a family or even himself. Motor carriers, under this standard, are essentially required to make an educated guess about the driver’s sobriety and ability to remain sober and then live with the consequences if the driver is returned to the open road. While the rights of the disabled are highly important, public safety is of paramount importance. This case demonstrates the tension between the ADA and federal trucking and transportation law. The ADA demands that employers provide reasonable accommodations to disabled workers, including alcoholic drivers. Federal trucking and transportation law provides that a motor carrier shall not require or even allow a driver to operate a commercial motor vehicle if the driver’s ability or alertness is impaired in a way that makes it unsafe for him or her to operate a motor vehicle. The EEOC is making it more difficult for motor carriers to make decisions that protect the public from unsafe drivers. It is now more important than ever for trucking companies to carefully evaluate the programs they have in place for impaired drivers. At the same time, companies have the responsibility to make trucking as safe as possible.