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A for-hire motor carrier company’s self-reporting policy ventured past the Department of Transportation’s regulations on safety sensitive jobs and into territory governed by the Americans with Disabilities Act (ADA), a Federal District Court in Arkansas stated in EEOC v. Old Dominion Freight Lines, Inc. The Court found the policy, which applied to self-reporting drivers who had not otherwise engaged in DOT prohibited conduct, failed to consider reasonable accommodations and at least a possibility of a return to driving.  The District Court found that the policy violated the ADA and permanently enjoined it.

In the wake of this ruling, transportation entities should certainly review their self-reporting policies to determine whether they run afoul of the ADA safe harbor provision as it is applied to aspects of safety sensitive employment that is not regulated by the DOT.

The driver reported that he had been abusing alcohol on his personal time and thought he was disabled by alcoholism. The driver was suspended pursuant to the company’s policy of not allowing drivers who self-report alcohol abuse to return to driving.  At the time of the self-report, the driver had never engaged in any conduct regarding the misuse of alcohol prohibited by Subpart B of the DOT regulatory e.g. (reporting for duty while having a blood alcohol concentration of 0.04 or greater, using alcohol while driving, driving within four hours of using alcohol, using alcohol sometime within eight hours following an accident, or refusing to submit to a random alcohol test).  The company referred the driver to substance abuse counseling and allegedly told him they would not return him to a driver position even upon the completion of the counseling program.  The company policy actually provided that if the substance abuse professional concluded that the driver had a current clinical diagnosis of alcoholism, the employee would be permanently disqualified and prohibited from ever returning to a driving position, regardless of the circumstances and without regard to any potential accommodations.

Subpart O of the DOT regs state that when an employee has violated DOT drug and alcohol regulations he cannot again perform any DOT safety sensitive duties for any employer until and unless he completes the substance abuse professional evaluation, referral, and education/treatment process. This compliance is mandatory. Here, the driver did not engage in any conduct constituting a violation of DOT regs and therefore he was not subject to the requirement to submit to evaluation and treatment as mandated by DOT.

The court found that the employee, upon self-reporting his alcohol addiction, was treated as though he had engaged in prohibited DOT conduct. The court found that the policy contravened public policy and erroneously conflates the temporary suspension resulting from current clinical diagnosis of alcoholism with complete discretion to effectively terminate all self-reporting drivers without regard to the ADA.  Accordingly, the court found the policy clearly imposed more far reaching and severe consequences on drivers than does the DOT.  In the court’s view, once the employer determined that the employee had not violated DOT regulations but rather had reported an alcohol addiction, it was the employer’s responsibility to then determine whether the employee was disabled by alcoholism and, potentially, whether he could have driven again if provided a reasonable accommodation.  Requiring the employee to participate and complete a substance abuse professional approved treatment plan was not a reasonable accommodation because it failed to contemplate at least a potential return to driving.

The employer’s error here, in the court’s belief, came from its misreading of the ADA’s Safe Harbor Provision, which exempts employees employed in a transportation sensitive position including complying with DOT regulations that apply to employment in sensitive positions in such an industry. The Court noted that the Safe Harbor Provision does not apply when an employee engaged in some aspect of safety sensitive employment that is not regulated by the DOT. In this scenario, the ADA’s protections fill the gap and provide protection to the employee.

For this reason, the Court entered a permanent injunction prohibiting the employer from enforcing its policy because allowing the company to continue to enforce it created the threat of continuing harm to other drivers.