When it comes to Native American tribes and Indian reservations, sometimes the rules can be more complicated because Indian reservations are considered domestic dependent nations. This means that, in addition to the laws of the tribe, federal law applies, but not the laws of the state or states they border[1]. Thus, federal regulations and tribal law control instead of state regulations when considering if tribal organizations need to conduct reasonable suspicion training for their supervisors.
WHEN DOES A SUPERVISOR NEED REASONABLE SUSPICION TRAINING?
According to federal law, a supervisor needs reasonable suspicion training when the supervisor has been designated to supervise people in certain safety-sensitive positions such as: truck drivers, pilots, railroad workers, and some pipeline and hazardous material employees[2]. The Omnibus Transportation Act of 1991 clarified the DOT rules that had already been published in 1988[3] and indicated that civic organizations, churches, and tribes were not exempt from this policy. Therefore, any tribal organization with employees involved in safety-sensitive duties as defined by the United States Department of Transportation in a commercial capacity must train the supervisors of those employees in the signs and symptoms of drug and alcohol use in accordance with federal regulations.
ARE INDIAN TRIBES NOT EXEMPT FROM FMCSA REGULATIONS?
Federal Motor Carrier Safety Administration (FMCSA) regulation 49 CFR Part 390.3(f)(2) provides a jurisdictional exception for certain governmental agencies or organizations, “transportation performed by the Federal government, a State, or any political subdivision of a State, or an agency established under a compact between States that has been approved by the Congress of the United States”[4]. It might be argued that as semi-sovereign nations, any federally recognized tribe could be considered a “state” governmental entity and therefore exempt from FMCSA regulations. If tribes are exempt, then supervisors would be exempt from reasonable suspicion training.
However, this is not the case. Tribes are not exempt from drug and alcohol testing regulations when their employees participate in safety-sensitive transportation duties. Therefore, supervisors of safety-sensitive employees, whether tribal or not, should be properly trained in reasonable suspicion determinations.
IF A CDL IS REQUIRED
Federal law requires states to issue Commercial Driver’s Licenses (CDLs) to employees who operate a Commercial Motor Vehicle (CMV). If a driver operates a CMV in interstate, intrastate, or foreign commerce, they are required to have a CDL. If a person is required to have a CDL, their supervisor requires reasonable suspicion training[5]. Because the CDL requirement is federal law, tribal organizations must also comply.
WHAT ABOUT ONLY OCCASIONAL TRANSPORTATION?
Under 49 CFR §390.3(f)(3), occasional transportation of personal property – when not for money or business – does not require individuals to obtain a CDL license and thus does not require a supervisor. Because a supervisor is not required, no reasonable suspicion training is required. Occasional personal property transport examples include moving boats, cars, and horses without compensation.
WHAT ABOUT SUPERVISORS OF EMPLOYEES NOT IN DOT SAFETY-SENSITIVE FUNCTIONS?
All supervisors should be trained in making reasonable suspicion determinations. If you have a drug and alcohol free workplace authorizing reasonable suspicion determinations for testing, then your supervisors need to be trained in recognizing the signs and symptoms of drug and alcohol use, regardless of federal regulation. Every position carries an inherent risk of harm, whether an employee is operating a fully-loaded 18-wheeler (80,000 lbs), or answering phones in an office, drug and alcohol use poses a safety risk to your workers, the public, and your property. If only to recognize when an employee has an issue and be able to get them help, reasonable suspicion training is crucial.
NEED FURTHER GUIDANCE ON DOT & NON-DOT REASONABLE SUSPICION TRAINING?
The US Department of Transportation has compiled a brief survey that will help you understand if you or your supervisors are covered by DOT drug and alcohol testing regulations[6]. You can access this tool on their website.