DOT Drug & Alcohol Management
Drug and alcohol testing is not as straightforward as it may seem when you consider the following:
- The Federal Motor Carrier Safety Regulations (FMCSR) maintain specific drug and alcohol testing requirements.
- Some states have their own regulations that limit or add conditions to drug testing programs.
- Legal issues are still a concern even after a drug testing program has been implemented (e.g., confidentiality, random drug testing rules, FMLA rights, liability for defamation, etc.).
Whether you need info on recordkeeping, random testing, or drug and alcohol training or testing products, J. J. Keller can help you remain compliant. Learn more below, or browse a variety of essential drug and alcohol solutions.
- FMCSA announces proposes National D&A Testing Clearinghouse for CDL drivers (2-12-14)
- Federal Transit Administration makes minor revisions to its DOT Drug and Alcohol testing rules (6-27-13)
- Drug and Alcohol Testing Definitions
- Post-accident Testing Flow Chart
- FMCSR Recordkeeping Requirements
- What a Driver Can Expect
- What Happens When a Driver Tests Positive
Driver Drug & Alcohol Training
Drivers are not required to undergo formal training under the federal drug and alcohol testing regulations. However, materials explaining how the employer implements the requirements of Part 382, and the employer's policies, must be provided to each driver.
Written notice of the availability of these materials must be provided to union representatives. These materials must be distributed prior to the start of alcohol and drug testing. Each driver must sign a receipt that he/she has received a copy of the materials.
Information on the following eleven areas must be included in the materials:
- The name of the person designated by the employer to answer driver questions about the materials
- The categories of drivers who are subject to the provisions of Part 382
- Sufficient information about the safety–sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with Part 382
- Specific information concerning driver conduct that is prohibited
- The circumstances under which a driver will be tested for alcohol and/or drugs under Part 382
- The procedures that will be used to test for the presence of alcohol and drugs, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver
- The requirement that a driver submit to alcohol and drug tests administered in accordance with Part 382
- An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences
- The consequences for drivers found to have violated Subpart B, including the requirement that the driver be removed immediately from safety–sensitive functions, and the procedures under §382.605;
- The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04
- Information concerning:
- The effects of alcohol and drug use on an individual's health, work, and personal life
- Signs and symptoms of an alcohol or drug problem (the driver's or a co–worker's)
- Available methods of intervening when an alcohol or drug problem is suspected, including confrontation, referral to any employee assistance program and or referral to management.
Optional Provision — The materials may also include information on additional employer policies with respect to the use or possession of alcohol or drugs. These additional policies must be clearly identified as based on the employer's independent authority.
Supervisor alcohol and drug training
An employer must ensure all persons designated to supervise drivers receive the following:
- 60 minutes of training on alcohol misuse, and
- 60 minutes of training on drug use.
Supervisors will use the training to determine whether reasonable suspicion exists to require a driver to undergo testing.
The training must cover the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of drugs. Recurrent training is not required.
Reasonable Suspicion Testing: What Supervisors Need To Know - DVD Training Help fulfill supervisors’ required drug and alcohol training. Online preview available.
For supervisors of CMV drivers - helps fulfill supervisors’ required drug and alcohol training
Give your drivers the information they need for DOT's alcohol & drug testing requirements. Online preview available.
Recordkeeping — Drug and Alcohol Program
Employers are expected to maintain records of their alcohol and drug programs. §382.401 specifies the records to be kept and the length of time. The records must be kept in a secure location with controlled access. The records may be included in personnel records that have controlled and secure access only by authorized personnel.
Specific types of records to be maintained:
- Records related to the collection process:
- Collection logbooks (if used)
- Documents related to the random selection process
- Calibration documentation for EBTs
- Documentation of Breath Alcohol Technician (BAT) training
- Documentation of reasoning for reasonable suspicion testing
- Documentation of reasoning for post–accident testing
- Documents verifying a medical explanation for the inability to provide adequate breath or urine for testing
- Consolidated annual calendar year summaries.
- Records related to the driver's test results:
- Employer's copy of the alcohol test form, including results
- Employer's copy of the drug test chain of custody and control form
- Documents sent to the employer by the Medical Review Officer
- Documentation of any driver's refusal to submit to a required alcohol or drug test
- Documents provided by a driver to dispute results of test.
- Previous employer alcohol and drug test results (§382.301(d) and 382.413)
- Documentation of any other violations of drug use or alcohol misuse rules.
- Records related to evaluations:
- Records pertaining to substance abuse professional's (SAP's) determination of a driver's need for assistance
- Records concerning a driver's compliance with SAP's recommendations.
- Records related to education and training:
- Materials on drug and alcohol awareness, including a copy of the employer's policy on drug use and alcohol misuse
- Documentation of compliance with requirement to provide drivers with educational material, including driver's signed receipt of materials
- Documentation of supervisor training
- Documentation of training for breath alcohol technicians (40.51(a))
- Certification that training conducted under this rule complies with all requirements of the rule.
- Records related to alcohol and drug testing:
- Agreements with collection site facilities, laboratories, breath alcohol technicians, medical officers (MROs), and consortia
- Names and positions of officials and their role in the employer's alcohol and controlled substance testing program
- Semi-annual statistical summaries of urinalysis received from certified lab (§40.111(a))
- The employer's alcohol and drug testing policy and procedures.
The following chart shows the required retention period for the various records:
|5 years||Alcohol test results indicating a breath alcohol concentration of 0.02 or greater Verified positive drug test results Refusals to submit to required alcohol or drug tests Required calibration of evidential breath testing devices (EBT's) Substance abuse professional's (SAP's) evaluations and referrals Annual calendar year summary|
|2 years||Records related to the collection process and training|
|1 year||Negative and cancelled drug test results Alcohol test results indicating a breath alcohol concentration less than 0.02|
Location of Records
The Federal Motor Carrier Safety Administration (FMCSA) is requiring all documents to be maintained in accordance with §390.31, which sets forth requirements for copies and long–term storage of documents. §390.31 allows that records, except those requiring a signature, may be maintained through the use of computer technology, as long as access to drug/alcohol records is controlled. The motor carrier must be able to produce a computer printout of the required data on demand.
The FMCSA will allow the records to be maintained anywhere, but the employer must make them available at the employer's principal place of business within two days of an FMCSA request.
Annual Summary Requirements
Under 49 CFR §382.403, a motor carrier must prepare an annual summary of alcohol and drug test results only if the carrier is notified by FMCSA to submit summary information on forms provided by the agency, or upon the demand of a federal, state, or local official with proper authority as part of an inspection, investigation, or special study.View Drug & Alcohol Forms
Part 382 rule requires the following types of testing:
- Reasonable suspicion
- Among the most-cited of all FMCSA safety regulations
- A verified negative test result must be present before using the driver in a safety-sensitive function for the first time
- DOT pre-employment drug screen required of:
- New employees/employers just starting to use CMVs that require CDLs
- Employees transferring into CDL positions
- A driver who has not been in a DOT program in the past 30 days (new hire, rehire, layoff, LOA)
- Pre-Employment Testing Not required:
- Of Non-CDL positions at a motor carrier
- During mergers/acquisitions with no break in driver’s employment
- When the motor carrier’s name changes
- When a driver transfers from one division or subsidiary providing they share the same USDOT number
- If the driver qualifies for the exception in §382.301(b)
- The FMCSA requires drivers who operate CMVs that require a commercial driver's license (CDL) to be subject to random drug and alcohol testing.
- Many of the requirements with regard to random testing are the same for both alcohol and drug testing. Two areas in which the regulations differ deal with the random testing rate and the time period when the test may be conducted.
- Required Random draw from pool of affected drivers
- Testing rates are based on average number of driver positions:
- 50% tested for drugs annually
- 10% tested for alcohol annually
- Alcohol Testing — A driver shall only be tested while the driver is performing safety–sensitive functions, immediately prior to performing, or immediately after performing safety–sensitive functions
- Drug Testing — Drug testing may be performed at any time while the driver is at work for the employer. The driver may be doing clerical or mechanical repair duties at the time of notification by the employer
Required as soon as practicable following an accident involving a CMV on a public road, in commerce when:
- The accident involves a fatality
- The driver receives a citation under state or local law for a moving traffic violation from an accident that involved:
- Injury requiring medical treatment away from the scene
- One or more vehicles incurring disabling damage and having to be towed from the scene
Testing Time frame -
Alcohol test - when a required controlled substances test has not been administered within a reasonable timeframe following the accident, the following action must take place:
- If the driver has not submitted to an alcohol test within 2 hours, the employer must prepare and maintain on file a record stating the reason a test was not promptly administered.
- If the driver has not submitted to an alcohol test within 8 hours, cease attempts to administer the test and prepare and maintain the record described above.
Drug test - if the driver has not submiutted to a drug test within 32 hours, the employer must cease attempts to administer the test, and prepare and maintain a record stating why.
General - A driver who is subject to post accident testing must remain available for testing, or the employer may consider the driver to have refused to submit to testing. The driver may continue to dfrive after the accident, pending the results of the post-accident tests, so long as no other restrictions are imposed by law enforcement officials or the reasonable-suspicion testing regulations. The driver subject to post-accident testing must refrain from drinking alcohol for 8 hours following the accident, or until he/she submits to an alcohol test, whichever comes first.View detailed flowchart.
Return-to-duty testing must be performed according to part 40, Subpart O. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed.
Tests do not need to be confined to substance involved in the violation if SAP determines so
Alcohol Test: After engaging in prohibited conduct regarding alcohol misuse, the driver shall undergo a return-to-duty alcohol test before performing a safety-sensitive function. The test result must indicate a breath alcohol concentration of less than 0.02.
Drug Test: After engaging in prohibited conduct regarding drug use, the driver shall undergo a return-to-duty alcohol test before performing a safety-sensitive function. The test result must indicate a verified negative result for drug use. Return-to-duty drug tests must be conducted under direct observation.
- Part 40, Subpart O, contains the requirements for follow-up testing.
- Generally, if a substance abuse professional (SAP) determines that a driver needs assistance resolving problems associated with alcohol or drug use, the employer shall ensure the driver is subject to unannounced follow-up testing following the driver's return to duty
- The number and frequency of tests are determined by the SAP
- But must consist of at least 6 tests during the first 12 months following the drivers return to duty
- Follow-up testing may be done for up to 60 months
- SAP can terminate the requirement for the follow-up testing in excess of the minimum at any time, if the SP determines that the testing is no longer necessary
- The number and frequency of tests are determined by the SAP
- Follow-up testing is separate from and in addition to the regular random testing program
- Follow-up drug tests "must" be conducted under direct observation
- The requirements for follow-up testing plan "follow the employee" to subsequent employers or through breaks in service
- Follow-up tests neen not be confined to the substance involved in the violation
- Follow-up testing for alcohol can only be performed when the driver is performing safety-sensitive functions, or immediately prior to performing or immediately after performing safety-sensitive functions
- An employer may not require employees to undergo additional follow-up testing beyond the SAP's requirements in the follow-up testing plan
Reasonable suspicion alcohol and drug testing
Drivers are required to submit to an alcohol or drug test when the employer has reasonable suspicion to believe the driver has violated the prohibitions in §382.201 through 382.215 (Subpart B). The employer's reasonable suspicion must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
- Under the Part 382 rules, only one supervisor or company official is required to make the observations necessary to require a test.
- The supervisor or company official who makes a reasonable suspicion determination must have received the two required 60–minute sessions of training.
Other aspects of the reasonable suspicion testing requirements are specific to alcohol testing or drug testing. Refer to the following paragraphs for a summary of those provisions.
Alcohol Specific Requirements
Alcohol Test - Alcohol testing is authorized only if the observations are made during, just before, or just after the driver performs safety–sensitive functions. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test, in order to preserve protection for the driver.
The mere possession of alcohol does not constitute a need for reasonable suspicion testing, which must be based on observations concerning the driver's appearance, behavior, speech, or body odor.
Administering the Test - If a reasonable suspicion alcohol test is not administered within two hours following the observations, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not administered promptly. If the test was not administered within eight hours, the employer shall cease attempts to administer the test, and shall prepare and maintain the record listed above.
If reasonable suspicion is observed but a reasonable suspicion test has not yet been administered, a driver shall not perform safety–sensitive functions until:
- an alcohol test is administered and the driver's alcohol concentration measures less than 0.02, or
- 24 hours have elapsed following the determination of reasonable suspicion.
The regulations do not give the employer authority to take any action, other than stated above, against a driver based solely on the driver's behavior and appearance with no test result. The employer may take other action independent of FMSCA regulatory authority.
Drug Test - The documentation of the driver's conduct must be prepared and signed by the witness within 24 hours of the observed behavior, or before the results of the drug test are released, whichever is earlierTesting Solutions
Who should be in a DOT drug and alcohol testing program?
Essentially, Part 382 applies to those required to hold CDLs (or the Mexican or Canadian equivalent), and their employers. This means that, unlike most other safety regulations, they apply to both intrastate and interstate CMV drivers. So if a truck is large enough to require a CDL, the driver is subject to drug and alcohol testing even if he or she drives a few miles per week and never crosses state lines. This could include a mechanic, dispatcher, warehouse worker, or any other occasional or fill-in driver.
Does a mechanic fall under Part 382?
Yes, in many cases he or she does. Even if your technicians just test drive CMVs, they are required to have a CDL and be placed in your DOT drug and alcohol testing program, including a pre-employment drug screen when first employed in this position. The mechanic would need all the components of Part 382 – random drug testing, educational materials, and previous employer drug and alcohol testing information.
May a road test be given before a pre-employment drug test?
Yes. According to the FMCSA, an employer may administer a road test to a driver-applicant subject to Part 382 without first testing him/her for controlled substances. However, a motor carrier must obtain a verified negative controlled substance test result prior to dispatching a driver on his/her first trip.
Under what circumstances do CDL drivers have to be tested for drugs and alcohol following an accident?
There are three situations in which a commercial driver must be tested for drugs and alcohol following an accident:
- Any time the accident results in a fatality;
- If the commercial driver receives a citation AND someone in the accident is injured and receives immediate medical attention away from the scene; or
- If the commercial driver receives a citation AND one or more vehicles incur disabling damage requiring the vehicle to be towed from the scene.
If the accident only involves getting on or off the vehicle, or the loading or unloading of cargo, the driver would not be required to have a post-accident drug or alcohol test.
When do I send out requests for previous employer alcohol and drug testing information?
Under §391.23(e), employers are required to investigate each driver/applicant’s drug and alcohol testing history from all previous DOT-regulated employers that employed the driver within the previous three years (from the date of the employment application) in a safety-sensitive function that required alcohol and drug testing specified by 49 CFR Part 40. This investigation must be performed even if the driver will not be subject to drug/alcohol testing while employed by you.
Section 391.23(c) requires that replies to this investigation, or documentation of good faith efforts to obtain the information, must be placed in the driver investigation history file within 30 days of the date the driver’s employment begins. Because previous employers are also given 30 days to respond to the requests (§391.23(g)(1)), the inquiries should be sent as soon as possible, preferably before an employment decision is made.
Does a driver have to log the time he/she spends going for DOT drug and alcohol testing?
Yes. The time spent traveling to and from a collection site and the actual time the test is performed is on-duty/non-driving time on a driver’s record of duty status. This is true for random, reasonable suspicion, post-accident, or follow-up testing.
How much advance notice does a driver receive for a random drug or alcohol test?
Both random and follow-up tests must be unannounced. This means that once a driver has been notified of the test, he or she must proceed to the collection site immediately as required in §382.305(l). If the driver is performing a safety-sensitive function, he or she must cease, and proceed to the facility as soon as possible.
When an appointment has been scheduled for testing, the collection site will be expecting the driver at a specific time, and if too much time has elapsed, the designated employer representative (DER) will be contacted and the result considered a refusal to be tested.
How many drivers do I randomly test per year?
The FMCSA has a minimum random drug-testing requirement of 50 percent of the average number of driver positions, and a minimum of 10 percent for random alcohol testing. In the event either of these percentages is changed by the FMCSA, the change will be published in the Federal Register.
What are the consequences for a driver who refuses a drug or alcohol test?
Refusing a drug or alcohol test is among the prohibitions listed in Subpart B of Part 382 of the Federal Motor Carrier Safety Regulations. If a driver refuses a drug or alcohol test, the carrier must treat the driver the same as if he/she failed the test. This includes immediately removing the driver from safety-sensitive functions (such as driving) and advising the driver of resources available for evaluating and resolving alcohol and drug problems.
As an employer, do I have to report positive drug or alcohol tests to the government?
Under the federal regulations (49 CFR Part 40 from the U.S. Department of Transportation and 49 CFR Part 382 from the Federal Motor Carrier Safety Administration), you are not required to report positive drug or alcohol tests to anyone.
However, in recent years, some states have adopted their own reporting requirements.
May a driver use a prescribed drug?
Yes, a driver may use a prescribed drug if certain conditions are met. Drugs which are prohibited under the FMCSRs appear in 21 CFR 1308, Schedules of Controlled Substances. They are lists, or Schedules, of controlled substances, categorized as opiates, opiate derivatives, hallucinogenic substances, depressants, and stimulants. Prescription brand names will not appear on the list, but rather their chemical composition. Each drug or substance has been assigned a DEA Controlled Substances Code Number.
Drugs contained in the list prevent a driver from being medically qualified per §391.41(b)(12).
Drivers are restricted from using 21 CFR 1308.11, Schedule I, regardless of whether they obtained the drug legally or not. Non-Schedule I drugs may be used under an exception if the following is true:
- If the substance or drug is prescribed by a licensed medical practitioner who is familiar with the driver's medical history and assigned duties; and
- The licensed medical practitioner has advised the driver that the prescribed substance or drug will not adversely affect the driver's ability to safely operate a commercial motor vehicle.
If the licensed medical practitioner prescribes the medication without insight into the assigned duties, the driver is still medically unqualified, and the exception to the rule does not apply, even though he/she obtained the medication legally.
Can drivers drive before the company receives drug test results?
If a carrier is pre-employment testing a newly hired driver, the company must receive negative test results before allowing the driver to drive. Not waiting for negative test results has led to fines for many companies.
A driver who has taken a random or post-accident drug test may continue to drive while test results are being processed. A carrier would only have to remove the driver from safety-sensitive functions if and when a confirmed positive result was received.
What is considered prohibited behavior for alcohol consumption?
Prohibited behavior in regard to both alcohol and drug use is listed in Subpart B of Part 382. This portion of the regulation clarifies alcohol misuse that could affect the performance of a safety-sensitive function is prohibited. This includes:
- Use while performing safety-sensitive functions;
- Use during the 4 hours before performing a safety-sensitive function;
- Reporting for duty or remaining on duty to perform safety-sensitive functions with an alcohol concentration of 0.04 or greater;
- Use during 8 hours following an accident, or until the driver undergoes a post-accident test; and
- Refusal to take a required test.
A driver found to have an alcohol concentration of 0.02 or greater but less than 0.04 may not perform, nor be permitted to perform, safety-sensitive functions for at least 24 hours.
Will a CDL driver with an alcohol concentration .04 be cited in a personal vehicle?
A CDL driver must follow prescribed state law in regards to alcohol concentrations in a personal vehicle. Consider the following:
- When in a personal vehicle, the driver would be charged (or not charged) based on the prescribed state alcohol limit, not .04.
- If the driver is convicted of a DWI under the prescribed state law in a personal vehicle, it will be held against the driver for CDL disqualification, providing the state of licensing has implemented the new CDL disqualifications.
Do drivers need to be pre-employment tested for alcohol?
No. Sec. 382.301(d) states that employers are allowed to, but are not required to, conduct pre-employment tests for alcohol.
Drug & Alcohol Program Management Services
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- Individual pool or consortium
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- Random selections
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