Liability When a Driver Who Has Failed a Drug Test is Allowed to Return to Duty

The controlled substance testing regulations apply to every person subject to the commercial driver’s license requirements who operates a commercial motor or passenger bus vehicle in commerce in any state.  Motor and bus carriers must make sure that substance abuse testing and other related requirements are satisfied by all “employees” (which are defined in certain cases to include independent contractor drivers), mechanics and freight handlers.

A driver that tests positive in a random drug test must undertake and satisfy a specified process before being returned to the performance of a safety-sensitive function.  However, the regulations state that the employer is not required to return a driver to safety-sensitive duties simply because he or she has met the regulatory conditions.

The key question is should the employer allow such a driver to resume safety sensitive functions such as driving the motor or bus vehicle? Is the employer immunized from being sued for negligence in the event the driver that is properly returned to duty is involved in an accident causing personal injury or property damage?

A defendant’s compliance with government statutes and regulations is usually admissible as evidence of the exercise of due care. Dorsey v. Honda Motor co., 655 F. 2d 650, 656 (5th Cir., 1981). However, such evidence does not mean that the defendant has an ironclad defense to an action for negligence.

The general rule is that compliance with government statutes and regulations “does not prevent a finding of negligence where a reasonable man would take additional precautions” over and above what may be required by the law (Restatement (Second) of Torts, section 288C (1965).  The rationale for the rule is that, for the most part, statutes, ordinances and regulations act only as a minimum floor of satisfactory behavior, and thus compliance with them acts only to meet the limited objective of providing a minimum level of responsibility.  Paul Duffert, The Role of Regulatory Compliance in Tort Actions, 26 Harvard Journal on Legis. 175, 180; Smith v. Atlantic Richfield Co., 814 F. 2d 1481, 1487 (10th Cir., 1987).

In one case, it was held that the judicial system serves the purpose of acting as an additional check because “common law courts often require a defendant to meet a higher standard of care than that dictated by the relevant statute, ordinance, or regulation in order to escape liability for lawsuits.  Specific facts may exist in a case that would impose a higher standard of care on the defendant.  Southern Pacific Railroad v. Mitchell, 292 P. 2d 827, 832-33 (Ariz., 1956).

So, suffice it to say that employers should be very careful before returning to a safety sensitive function any employee, or covered independent contractor, that has tested positive for substance abuse.

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