A Pennsylvania court has upheld a commercial motor vehicle driver’s eligibility to receive unemployment benefits where the Medical Review Officer (“MRO”) did not advise the driver of his right to request a split-specimen test, as required under the Federal Motor Carrier Safety Administration’s (“FMCSA”) regulations. Carlisle Carrier Corporation v. Unemployment Compensation Board of Review, No. 567 C.D. 2013, 2013 Pa. Commw. Unpub. LEXIS 740 (Pa. Commw. Oct. 3, 2013).
The driver was discharged after testing positive for cocaine on a random drug test. Pursuant to U.S. Department of Transportation (“DOT”) regulations, the driver should have been advised by the MRO that he had the right to request a split-specimen test within 72 hours of being notified of the positive test result. 49 C.F.R. §§ 40.153 & 40.171.
The driver testified that he was not so notified. The employer did not call the MRO as a witness, but had a Human Resources employee testify about what “would” have happened when a driver tests positive. The employer also argued that the driver had been trained on the Company’s drug and alcohol policy which discussed the right to request a split-specimen test. The Court rejected the Human Resources employee’s testimony as hearsay, and held that the employer’s training on the drug policy did not satisfy the obligation under FMCSA regulations to notify the driver of his right to a split-specimen test within 72 hours of being notified of the positive test result.
The Court affirmed the order of the Unemployment Compensation Board of Review which affirmed a referee’s determination that the driver was eligible to receive unemployment compensation benefits.
This case serves as a reminder that DOT-regulated employers are ultimately responsible for compliance with all DOT drug and alcohol testing regulations, and are responsible for the actions taken by their service agents, including MROs. 49 C.F.R. § 40.15(c).