Opioid use and abuse has reached epidemic levels in our country. This crisis is far-reaching, affecting virtually all industries and geographic areas, including truck drivers. Studies have shown that fatally injured motor vehicle drivers who tested positive for prescription opioids rose from 1 percent in 1995 to over 7 percent in 2015. Opioids are particularly dangerous for vehicle operators as they can cause drowsiness, slower reaction time, and diminished alertness. Perhaps in response to this epidemic, the Department of Transportation (DOT) revised its drug screening procedures effective January 1, 2018 to include testing for several opioids such as Hydrocodone (aka Vicodin), Hydromorphone (aka Dilaudid), Oxymorphone, and Oxycodone (aka Oxycontin and Roxicodone). But what happens if you are a motor carrier who becomes aware that a current truck driver employee who previously passed drug testing is now using or abusing opioids, or other controlled dangerous substances? Can you simply fire the driver? Or can your employee claim protection under the Americans with Disabilities Act (ADA)?

The ADA prohibits employers from terminating a “qualified individual” on the basis of disability. In order to be successful on an ADA claim, a plaintiff employee must show that: (1) he is disabled; (2) he is a qualified individual; and (3) he suffered unlawful discrimination because of his disability. According to the Equal Employment Opportunity Commission (EEOC), individuals who are addicted to drugs, but are no longer using drugs illegally and are receiving treatment for drug addiction, are protected by the ADA. So while drug addiction itself may be considered a disability under the ADA, the current use of illegal drugs bars an employee from ADA protection.

But the answer doesn’t end there. In fact, for employers in the commercial trucking industry, a disability analysis under the ADA may not even be necessary. Rather, a trucking company employer may answer this question by simply examining whether the driver employee is a “qualified individual” under the law. Because, simply put, if the driver is not qualified, there is no ADA protection.

Employee Drug Use Under the Federal Motor Carrier Safety Regulations

Congress and the EEOC permit employers who are subject to DOT standards and regulations to require that their employees comply with such standards and regulations. Pursuant to the Federal Motor Carrier Safety Regulations (FMCSR), a person shall not drive a commercial motor vehicle unless he or she is qualified to do so, and a driver is not qualified to operate a commercial motor vehicle if he or she uses any drug or substance identified in 21 C.F.R. 1308.11 Schedule I, or an amphetamine, narcotic, or other habit-forming drug. Furthermore, a driver is not qualified if he or she uses any drug or substance that is identified in Schedules II – V of 21 C.F.R part 1308 unless he or she has a prescription for such drug from a licensed medical practitioner who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. The FMCSR further provide that a motor carrier shall not require or permit a disqualified person to drive a commercial motor vehicle, and no employer having actual knowledge that a driver has used a controlled substance shall permit that driver to perform or continue perform a safety-sensitive function.

Schedule I drugs include, but are not limited to:

• Opiates such as acetyl fentanyl, beta-hydroxyfentanyl, butyryl fentanyl, and normethadone
• Opium derivates such as benzylmorphine and codeine methylbromide
• Hallucinogenic substances including marijuana, marijuana extract, and peyote
• And other “fentanyl-related substances” as defined by the federal regulations

Accordingly, any driver using any of the foregoing drugs or substances is not qualified to operate a commercial motor vehicle. Opiates such as codeine, hydrocodone, hydromorphone, morphine, oxycodone, and oxymorphone are Schedule II drugs. As such, any driver using those drugs must have a prescription issued by a licensed medical practitioner who is familiar with their medical history and who has determined that the use of such drug or substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. Without the prescription and physician’s attestation, the driver is not qualified to operate a commercial motor vehicle.

Case Law Covering ADA “Qualified Individuals” in the Trucking Industry

Courts have routinely held that a driver employee who is not qualified to operate a commercial motor vehicle under the federal regulations is also not a “qualified” individual under the ADA. For example:

• In June of 2018, the U.S. Court of Appeals for the Seventh Circuit held in Arce v. Chicago Transit Authority that the district court had correctly determined that the plaintiff driver employee had not established that he was a qualified individual with a disability under the ADA as the essential functions of his service truck chauffeur position required him to meet the standards outlined by the FMCSR, and that the FMCSR did not permit him to drive a commercial vehicle while on narcotic medications. As such, the circuit court upheld the dismissal of his ADA claims.
• In Jarvela v. Crete Carrier Corp., the U.S. Court of Appeals for the Eleventh Circuit held that the FMCSR “forbade” the motor carrier employer from permitting the truck driver employee to drive a commercial vehicle if the driver did not meet the qualification standards outlined therein. Based on the driver’s current clinical diagnosis of alcoholism, he was not qualified to operate a commercial vehicle under the federal regulations and therefore was not qualified to perform the essential functions of the job. As such, the circuit court upheld the dismissal of the plaintiff driver’s ADA claims.
• In Williams v. J.B. Hunt Transport, Inc., the U.S. District Court for the Southern District of Texas held that because Congress gave the DOT sole discretion to establish commercial driver qualifications, the plaintiff driver was required to prove that he met the requirements of the FMCSR in order to establish a claim under the ADA.

Advice for Employers

Motor carrier employers should review the FMCSR guidelines on driver qualifications and prohibited controlled dangerous substances when making termination decisions. When in doubt, consult with an employment lawyer who is knowledgeable of, and experienced with, the FMCSR guidelines.

For more information on FMCSR guidelines, illegal drug use or misuse in the trucking industry, and ADA protections, please contact Carianne P. Torrissi, a leader in Goldberg Segalla’s Trucking and Employment and Labor Practice Groups.