The expanding legalization of marijuana across the country opens up fleets and motor carriers to increased risk.
A post-crash drug test for a commercial truck driver that produces a positive result greatly increases the potential value of a potential liability claim against a motor carrier, regardless of whether the drug use was the cause of a crash. Whether a driver took a controlled substance two hours or two days prior to the crash, currently there is no effective test to measure a drug’s actual potency within the body and its real-time effect.
Keep in mind that drug tests are discoverable by plaintiffs’ attorneys, and positive tests are regularly used in commercial crash cases against a vehicle operator to increase the value of their claim. Additionally, a non-test situation, when a substance abuse test was required by regulations or company policy, is often damaging to a truck crash defense as it creates questions as to why a required substance abuse test was not completed. Because many crashes happen far from any company operations, it can be very challenging to get a driver to a collection location.
Early adopters of legalized cannabis include Colorado, Nevada, Oregon and Washington State. Colorado was the first state to legalize recreational marijuana. But unlike the alcohol breath analyzer, there’s no immediate field test for cannabis or any other narcotic. Until one is developed, commercial fleets and motor carriers will have to rely on their own internal pre-hire procedures, random tests and reasonable suspicion testing to avoid unwanted consequences on the road.
In the meantime, there are steps motor carriers can take to protect themselves from legal liability. The following practices can help fleets minimize the risk of hiring a driver who might be prone to drive under the influence and cause a crash:
Conduct thorough background checks: Per Federal Motor Carrier Safety Administration rules, drivers who test positive for drugs and/or alcohol must go through an employee substance abuse education program and engage in structured testing for at least 12 months. If a driver fails a drug test at a previous carrier and you hire that driver during the prescribed testing period, your fleet is now responsible for that driver’s structured substance abuse testing; monitoring that driver’s behavior and conducting structured testing is now your responsibility.
FMCSA plans to have an operational substance abuse testing clearinghouse this July that will provide motor carriers with information on a trucker’s previous substance abuse tests. Once it is fully implemented, employers will be required to query the clearinghouse before new employees get behind the wheel and annually for each existing employee.
Maintain a strong company policy: Follow FMCSA regulations for substance abuse testing, including pre-hire, random and reasonable suspicion. Have a strong internal policy that you consistently follow. If you have a zero-tolerance policy, stick to it; don’t make exceptions for individual drivers. If you do, you’re exposing yourself to additional legal liability and hurting your company culture.
Educate drivers and managers: Truck drivers need to understand that they cannot be under the influence of drugs and/or alcohol at any time while driving, whether it’s medical marijuana, opioids or even antihistamines. Many think that as long as they have a prescription, it’s acceptable to drive while taking these drugs; let them know this is not true. They also must understand that they can test positive even when they think a narcotic may no longer be effective in their system. Marijuana, for example, remains in body tissues for an extended period of time, and can produce a positive drug test more than three weeks post-use.
In addition, drivers’ supervisors must be trained to spot warning signs or suspicious behavior. The more supervisors that are trained, the better. Teach them to recognize common symptoms that can include sluggishness, pupil size, certain odors and suspect behaviors, including irritability, moodiness or agitation.
Educate drivers on laws for transporting narcotics: Teach drivers that transporting a narcotic in a commercial vehicle is prohibited as well. For example, a truck driver who goes to a dispensary to purchase marijuana — even legally — can and will be arrested for transporting an unopened package in their commercial motor vehicle.
Following these best practices can help protect your fleet from liability and keep the roads safe for all.
Steve Bojan is vice president and transportation practice leader at Hub International, an insurance brokerage. He has more than 24 years of operations and risk-management experience in the transportation industry.