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.
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.
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.
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.
Can truck 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.
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.
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.
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.
Beginning January 6, 2020, motor carriers must query the CDL Drug and Alcohol Clearinghouse for drivers hired in a safety-sensitive function. This query must be performed at time of hire and annually to ensure the driver did not violate testing rules under another motor carrier and to verify the status of a driver’s return-to-duty process in the event of a violation.
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.
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?
Beginning January 6, 2020, FMCSA testing violations are reported to the CDL Drug and Alcohol Clearinghouse.
Motor carrier input — directly or through designated C/TPA — includes:
- Confirmed alcohol concentration of .04 or greater
- Certain refusal-to-test scenarios
- Actual knowledge
- Negative return-to-duty test
- Completion of all follow-up tests
Medical Review Officer’s (MRO’s) submit other violations, including:
- Verified positive, adulterated, or substituted drug test results
- Certain refusal to test scenarios for drugs
- Driver admissions to the MRO