DOT 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.).
Resources & FAQs
In a final rule with an implementation date of January 6, 2020, the FMCSA requires motor carriers to alert drivers to the fact that the following personal information collected and maintained under Part 382 will be reported to the CDL Drug and Alcohol Clearinghouse:
- A verified positive, adulterated, or substituted drug test result;
- An alcohol confirmation test with a concentration of 0.04 or higher;
- A refusal to submit to any test required by Subpart C of Part 382;
- An employer’s report of actual knowledge, as defined at §382.107:
- On duty alcohol use pursuant to §382.205;
- Pre-duty alcohol use pursuant to §382.207;
- Alcohol use following an accident pursuant to §382.209;
- Controlled substance use pursuant to §382.213;
- A substance abuse professional (SAP as defined in §40.3) report of the successful completion of the return-to-duty process;
- A negative return-to-duty test; and
- An employer’s report of completion of follow-up testing.
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.
Any revisions to a DOT drug and alcohol testing policy must be distributed to the drivers prior to the implementation date, and a new receipt signed by the driver must be collected as documented proof.
Driver Alcohol & Drug 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 49 CFR 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 49 CFR 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 49 CFR 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 49 CFR 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 49 CFR 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.
Supervisor Alcohol & Drug Training (§382.603)
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.
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 FMCSA requires 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.
Part 382 rule requires the following types of testing:
Pre-employment testing is 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 is 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. The random draw is required to be pulled from a pool of affected drivers.
Testing rates are based on average number of driver positions:
- 25% tested for drugs annually
- 10% tested for alcohol annually
Testing time frames:
- Alcohol test: 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 test: 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.
Post-accident testing is 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 frames:
- 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 submitted 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 drive 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.
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 the substance involved in the violation if a SAP determines it is important to test for other substances.
Testing time frames:
- 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 drug 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.
Follow-Up Testing (Part 40, Subpart O)
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. Follow-up testing is separate from, and in addition to, the regular random testing program and must be conducted under direct observation.
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 SAP determines that the testing is no longer necessary. However, an employer may not require employees to undergo additional follow-up testing beyond the SAP's requirements.
Tests do not need to be confined to the substance involved in the violation if a SAP determines it is important to test for other substances. However, 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.
Note: The requirements for follow-up testing continue to "follow the employee" to subsequent employers or through breaks in service.
Reasonable Suspicion 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.
Only one supervisor or company official is required to make the observations necessary to require a test. That supervisor or company official 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. Here is a summary of those provisions:
- Alcohol Test Requirements
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.
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 Requirements
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 earlier.
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