Three Easy Ways to Risk Your Business

Please note that, while the first example pertains to a DOT regulated employer of a driver of a CMV (Commercial Motor Vehicle), there is nothing to prevent a court from finding any employer liable under similar circumstances.  In fact, all three of these examples show how easily an employer can “bet the farm” on policies or procedures in which potential risks to “third-parties” have not been carefully considered.  

One: Truck driver David Gale started a chain reaction leading to the death of Emily Van Dyke, when Gale apparently lost consciousness (due to a medical condition).  His commercial motor vehicle (CMV) hit a sheriff’s cruiser which, in turn, pushed Van Dyke’s car into a ravine.  Van Dyke had been pulled over for a traffic violation.

Everhart Trucking LLC and R&T Trucking of Waynesfield OH lost a $1,000,000 (the limit of the companies’ insurance coverage) civil suit because they “should have known” that the driver had a medical condition which “could have impaired his driving”. 

I don’t know all of the facts in this case.  However, I do know companies could easily get themselves into this same situation by:
(a) accepting a driver’s medical card for an examination performed by the driver’s physician, or from a previous employer;
(b) sending the driver for a new exam and the driver fails (or is restricted by) the 1st medical examiner (M.E.), the driver is sent to a 2nd M.E. so you can “get the driver on the road”; or
(c) choosing an M.E. based any factor other than the M.E.’s knowledge of DOT medical exam requirements and extensive experience conducting the exams on a regular basis. 

Two: A driver refuses a random drug test for a DOT-regulated employer and is consequently not permitted to drive a CMV.  The employer reassigns the employee to drive a smaller vehicle that is not regulated by the DOT.  More broadly, any employer who reassigns an employee under similar circumstances (e.g., a “safety-sensitive” issue), should carefully evaluate the potential of injury to third parties. 

Three: An employer may not have conducted a drug/alcohol test in a situation where the employer “should have known” (e.g., Reasonable Suspicion) an employee “could have” posed a danger to an innocent third-party.  Even if the employer conducts a R/S test and receives a “negative” test result, a potential liability exists.  “Something” prompted the R/S determination…maybe the employee is abusing a drug that the employer didn’t test for!!!  Maybe the employee has a medical condition (see above). 

Conclusion:  It is all to easy to be so focused on one issue (e.g., DOT regs) that you forget to think about other considerations (e.g., potential liability).  What is “permissible” may not be “prudent”.  Try the “Ben Franklin” approach:  Draw a line down the center of a piece of paper, then (1) In the first column, list all the reasons for a certain decision; (2) In the other column, list all the reasons against that decision; and (3) “Weigh” the decision carefully.  Train your mind to be sensitive to “red flags” and don’t hesitate to call us.  Use someone else’s hindsight as your foresight. 

If you’re not already using Drug Screens Plus Physical Exam and Lab/MRO/TPA services, and would like to reduce the likelihood of your company becoming an “Example”, call Jim Carlyle at 800-459-9012, ext 787.