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Truckers Alcohol and Drug Testing

Drug testing
Testing drivers for the presence of controlled substances is required by Part 382 of the Federal Motor Carrier Safety Regulations. The regulations require pre-employment, post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing.
For pre-employment test testing, a negative test result must be received before the driver operates a commercial motor vehicle.
Post-accident testing is required when any person involved in the accident has been fatally injured, or when the driver received a citation for a moving traffic violation in connection with the accident (as defined in §390.5). In post-accident testing, the use of police drug tests may be used in lieu of a motor carrier test where police will make results available.
The minimum annual testing rate for random drug testing is 50 percent.
Procedures for administering the test are outlined in Part 40, beginning at §40.31. The procedures require laboratory analysis of the urine specimen for the presence of drugs. Only laboratories certified by the Department of Health and Human Services may be used. An updated listing of the certified laboratories is published by the agency every month.
Drivers who fail a drug test, or violate the prohibitions against using drugs, must be removed from safety-sensitive functions. The employer must advise the driver of resources available in resolving a drug abuse problem. The driver must be evaluated by a substance abuse professional who shall determine what assistance the driver needs. Before a driver returns to duty, the driver must pass a return-to-duty test.
In addition the driver must be evaluated again by a substance abuse professional to determine whether the driver followed the program. The driver must also submit to at least six follow-up tests in the first 12 months following return to duty.
See the topics above for additional information.

 

Alcohol testing

Testing drivers for the presence of alcohol is required by Part 382 of the Federal Motor Carrier Safety Regulations. The regulations require post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing for drivers who are required to hold a commercial driver’s license (CDL).
Post-accident testing is required when any person involved in the accident has been fatally injured, or when the driver received a citation for a moving traffic violation in connection with the accident (as defined in §390.5). In post-accident testing, the use of police alcohol tests may be used in lieu of a motor carrier test where police will make results available.
The minimum annual testing rate for random alcohol testing is 10 percent, meaning that at least 1 in 10 of a company’s drivers must be randomly tested for alcohol each year.
When performing an alcohol test, a testing device approved by the National Highway Traffic Safety Administration (NHTSA) must be used. Evidential breath testing devices (EBTs) approved by NHTSA are placed on the “Conforming Products List of Evidential Breath Measurement Devices.” Non-evidential devices approved by NHTSA may be used for the screening test. These devices are listed on the “Conforming Products List of Alcohol Screening Devices .”
Procedures for administering the test are outlined in Part 40, beginning at §40.211. The procedure for using an alcohol screening device begins at §40.229.
Drivers who fail an alcohol test, or violate the prohibitions against using alcohol, must be removed from safety-sensitive functions. The employer must advise the driver of resources available in resolving an alcohol misuse problem. The driver must be evaluated by a substance abuse professional who will determine what assistance, if any, the driver needs. Before a driver returns to duty, the driver must pass a return-to-duty test.
In addition, if a treatment program was prescribed, the driver must be evaluated again by a substance abuse professional to determine whether the driver followed the program. The driver must also submit to at least six follow-up tests in the first 12 months following return to duty.
Alcohol testing does not have to be done in conjunction with a driver’s biannual medical examination, although the medical examiner could order such a test.
See the topics above for additional information.



Driver alcohol and drug training

§382.601
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:
1.

The name of the person designated by the employer to answer driver questions about the materials;
2.
The categories of drivers who are subject to the provisions of Part 382;
3.
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;
4.
Specific information concerning driver conduct that is prohibited;
5.
The circumstances under which a driver will be tested for alcohol and/or drugs under Part 382;
6.
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;
7.
The requirement that a driver submit to alcohol and drug tests administered in accordance with Part 382;
8.
An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;
9.
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;
10.
The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04;
11.
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); and
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.



Pre-employment drug testing

§382.301
Before a driver performs any safety–sensitive functions for an employer, the driver must submit to testing for drugs. For drug testing, the employer must have received a result from the medical review officer indicating a verified negative test result.
Before performing a drug test, the employer must notify the driver that the test is required under the regulations. The notice can be oral or written. Use of the "Controlled Substances Custody and Control Form" may serve as the required notice.
Whether pre–employment testing must be done varies according to the situation, as described in the following examples:
1.

A new employer just started operating CMVs in commerce. All drivers that would be hired to drive CMVs subject to this rule will fall under the pre–employment testing requirements.
2.
Employer A purchases Employer B. The pre–employment testing requirements would not be applicable to Employer A, because the individual's employment status has not been interrupted.
3.
All scenarios in which employer name changes occur, the pre–employment requirements would not apply.
4.
An employer is organized in divisions and subsidiaries. In any case where a driver would be transferred from one division to another, the pre–employment requirements would not apply. Under this scenario the employer is one corporate entity. The situation where a driver transfers from one wholly owned subsidiary to another, a pre–employment test would be needed, because each subsidiary is considered a separate corporate entity.
5.
A driver usually drives vehicles for which a CDL is not required to operate, but then is required to obtain a CDL and drive CMVs for the same employer. A pre–employment test would be required because the driver will be subject to Part 382.
6.
Any time a driver is hired and has not been part of a drug program that complies with the FMCSA regulations for the previous 30 days, a pre–employment drug test is required.
When any pre–employment test is required, an employer must actually test the individual or meet all of the respective requirements for pre–employment exceptions for controlled substances.
Employer Notification
Employers must notify a driver of the result of a drug test conducted under the regulations, if the driver requests the results within 60 days of being notified of the disposition of the employment application.
Exceptions
Pre–employment drug testing — An employer is not required to administer a pre-employment drug test if the following conditions are met:
The driver must have participated in a drug testing program meeting the requirements of this rule within the previous 30 days.
While participating in this program the driver must have either been tested for controlled substances in the previous 6 months, or participated in a random drug testing program for the previous 12 months.
The employer must also ensure that no prior employer of the driver has a record of violations of any DOT controlled substance use rule for the driver in the previous 6 months.
To take advantage of this exception, the motor carrier must contact the testing program prior to using the driver and obtain the following information:
1.

The name and address of the program. This would generally be the driver's prior and/or current employer.
2.
Verification that the driver participates or participated in the program.
3.
Verification that the program conforms to the required procedures set forth in 49 CFR Part 40.
4.
Verification that the driver is qualified under this rule, including that the driver has not refused to submit to an alcohol or drug test.
5.
The date the driver was last tested for alcohol and drugs.
6.
he results of any drug or alcohol test administered in the previous 6 months, and any violations of the alcohol misuse or drug rules.
An employer who uses a driver more than once a year, but does not employ the driver, must assure itself at least once every 6 months that the driver participates in an alcohol and drug testing program that meets the requirements of these regulations.



Drug and alcohol policy

Motor carriers are required to have written materials and a policy outlining their alcohol and drug program. These materials must be provided to each driver and 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:
1.

The name of the person designated by the employer to answer driver questions about the materials;
2.
The categories of drivers who are subject to the provisions of Part 382;
3.
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;
4.
Specific information concerning driver conduct that is prohibited;
5.
The circumstances under which a driver will be tested for alcohol and/or drugs under Part 382;
6.
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;
7.
The requirement that a driver submit to alcohol and drug tests administered in accordance with Part 382;
8.
An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;
9.
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 Sec. 382.605;
10.
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); and

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



Post-accident alcohol and drug testing

§382.303
The criteria for sending a driver for DOT-post accident testing are found in §382.303. The regulations also include the time frame under which they must be conducted, and the circumstances in which a law enforcement officer's test result may be used.
When Testing Is Required

As soon as practicable following an accident involving a commercial motor vehicle, each employer shall test each surviving driver for alcohol and drugs when at least one of the following is true:
1.

The accident involved a fatality. The driver must be sent no matter what, even if he or she was never cited. The driver must remain available for testing in case an injured person dies as a result of the accident after the fact. If someone dies as a result of the accident:
a.

Within 8 hours, the driver must be sent for an alcohol test, and
b.
Within 32 hours, the driver must be sent for a drug screen.
2.
Someone was injured requiring immediate treatment away from the scene AND your driver was issued a moving traffic citation in connection with the accident. The driver must remain available for testing in case a citation is issued after the fact. If the traffic citation was issued:
a.

Within 8 hours, you must send him or her for an alcohol test, and
b.
Within 32 hours, you must send him or her for a drug screen.
3.
One of the vehicles involved in the accident required towingAND your driver was issued a moving traffic citation in connection with the accident. The driver must remain available for testing in case a citation is issued after the fact. If the traffic citation was issued:
a.

Within 8 hours, you must send him or her for an alcohol test, and
b.
Within 32 hours, you must send him or her for a drug screen.
Time Frame for Testing

Nothing in the regulations should be construed as to require the delay of necessary medical attention for injured people following an accident. Also, the driver is not prohibited from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
Employers are obligated to provide the necessary information, procedures, and instructions to their drivers to allow them to be tested after an accident. This is especially important for employers whose operations occur in remote areas. Drivers are then obligated to follow the instructions and see that the tests are conducted.
When a required post–accident test has not been administered within the time frames stipulated, the actions outlined below must be taken.
Alcohol Test

1.

If the driver has not submitted to an alcohol test within 2 hours, the employer shall prepare and maintain on file a record stating the reason a test was not promptly administered.
2.
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.
The driver subject to post–accident testing must refrain from consuming alcohol for 8 hours following the accident, or until he/she submits to an alcohol test, whichever comes first. A driver who is subject to post–accident testing must remain available, or the employer may consider the driver to have refused to submit to testing.
Blood Testing Not Authorized — On February 15, 1994, the Department of Transportation published a proposal seeking comment on whether blood testing should be used in very limited circumstances (i.e., for post–accident tests, where evidential breath testing was not available). The DOT has concluded that it is not worth subjecting employees to an invasive testing procedure and incurring the other disadvantages of adding blood alcohol testing to the program to capture this probably small number of cases. For this reason, DOT withdrew the proposed authorization of the use of blood in some post–accident test situations, and will not include blood testing as a part of the DOT alcohol testing program.
Drug Test

If a driver has not submitted to a drug test within 32 hours, the employer shall cease attempts to administer the test, and prepare and maintain a record stating the reasons why.
A driver who is subject to post–accident testing must remain available, or the employer may consider the driver to have refused to submit to testing.
Law Enforcement Post–Accident Test

In lieu of administering a post–accident test, employers may substitute a test administered by on–site police or public safety officials under separate authority. The employer is allowed to substitute a blood or breath alcohol test and a urine drug test performed by such local officials, using procedures required by their jurisdictions. This may be particularly useful if that test can be administered before the employer can get to the scene. The employer must obtain a copy of the test results.



Random alcohol and drug testing

§382.305
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. These two areas will be discussed first, followed by a discussion of the requirements common to both alcohol and drug testing.
Alcohol Testing Rate
The random alcohol testing rate is 10% of the average number of driver positions.
The random testing rate had been set at 25%. The Federal Motor Carrier Safety Administration (FMCSA) may increase or decrease the minimum annual percentage rate for random alcohol testing based on the reported violation rate for the entire industry. The decision to change the testing rate is made according to the following results:
Violation Rate

Testing Rate

Less than .5% for 2 consecutive years

10%

.5% — 1.0%

25%

1.0% or greater

50%

When the FMCSA makes a decision to change the testing rate, the new rate will be published in the Federal Register. The new rate will become applicable on January 1st of the following year.
Only one year of data is necessary to raise the minimum rate; however, two years are required to lower the rate.
Drug Testing Rate
Random drug testing must be administered at a minimum annual rate of 50% of the average number of driver positions.
The FMCSA may lower the minimum random drug testing rate to 25% when the industry–wide random positive rate is less than 1.0% for two calendar years while testing at 50%. For example, the agency could lower the rate for 2006 if the combined positive testing rate is less than 1.0% based on data submitted for calendar years 2003 and 2004, and if it would be in the interest of safety. The rate would return to 50% if the industry random positive rate were 1.0% or higher in any subsequent calendar year. The regulations do not contain a provision to lower the random testing rate to 10% if the industry positive rate is less than .5%.
When Testing Must Be Conducted
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.
Selection and Notification
Itemized below are the major requirements concerning the selection and notification of drivers for random testing.
1.

Selection of drivers shall be made by a scientifically valid method, such as a random number table or a computer–based random number generator that is matched with drivers' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each driver shall have an equal chance of being tested each time selections are made.
2.
The employer shall ensure that random tests are unannounced and spread reasonably throughout the year.
Employers need to establish a program that will ensure that there is no period of time during which employees know testing "is done for the year." For example, if an employer is required to conduct only two tests and that number of tests are completed by mid–summer, the employer's program must ensure that more tests could be conducted before the end of the calendar year. Another alternative is for employers to join a consortium with testing pools large enough so that their drivers are always subject to random testing.
3.

The employer shall ensure that drivers selected for random tests proceed immediately to the testing site upon notification of being selected.
Employers are expected to notify and conduct tests on drivers as soon as possible after a selection of drivers is made. This means that when a selection of drivers has been made, the employer shall require all drivers selected to submit to testing at their first available time in the terminal or other appropriate location.
Employers shall not delay testing for drivers until just before the next selection of drivers names. Although the FHWA has allowed this practice in the past, the FHWA believes that some employers may use such an interpretation to perform quasi–reasonable suspicion tests of drivers by manipulating the timing of such tests, rather than conducting random testing that is not based on individualized suspicion. In addition, employers may have been delaying testing to move freight or allow a driver with a problem to "clean up" prior to taking the test.
4.

Employers may pool interstate and intrastate drivers together for random testing.
This is a change from the current prohibition that intrastate drivers not be included in random testing selection pools with interstate drivers. Since the new rule applies to all drivers with CDLs, there will be no need for the separation. However, the FHWA will prohibit the inclusion in the random selection pools of any employees not subject to any of the DOT agency testing rules.
If a driver works for two or more employers subject to FHWA or DOT agency regulations, the driver must be in all of the employers' random testing programs.
5.

Drug and alcohol testing is allowed from a single pool.
For example, an employer needs to randomly choose eight names for a drug test and four names for an alcohol test. The employer could establish a procedure to accomplish this in a way such as the following:
the first four names drawn would be tested for drugs and alcohol and the last four names drawn would only be tested for drugs, or
12 names could be drawn, the first 8 names would be tested for drugs and the last 4 names would be tested for alcohol.
6.

If a driver who is selected for a random test is on vacation, is laid off, or is on an extended medical absence, the employer can keep the selection confidential until the driver returns, provided the driver is notified and gets tested before the end of the cycle. If the driver will not be available for testing during the selection period, an alternate may be selected.
The selection of alternates is only permissible if the primary driver selected will not be available for testing during the selection period because of long-term absence due to layoff, illness, injury, vacation, or other circumstances. If an alternate will be selected, the employer and/or C/TPA must document the reason why an alternate driver was tested, and the documentation must be maintained and available for DOT inspection.
If a driver’s name is skipped entirely, the employer must keep documentation that the driver was ill, injured, laid off, or on vacation and that the driver was in the random selection pool for that cycle. An additional driver should be selected during the next testing cycle to achieve the annual testing rate. Employers are not allowed to notify any drivers to submit to a test while the driver is off work due to these circumstances.
An individual’s name should not be removed from the random pool as long as there is a reasonable expectation of the employee’s return. In the event a driver’s name is out of the random testing program for more than 30 days, the pre-employment drug testing provisions of the regulations would apply when the driver returns.
If an employer notifies its C/TPA that a selected employee is not available for testing and will not be available before the end of the testing cycle, the C/TPA may select another random employee from that employer, instead of selecting the next name on the random selection list. The DOT has deemed this a scientifically valid method for selecting driver names.
7.

If an employer is required to conduct random testing under the rules of more than one DOT agency, the employer may either:
establish separate pools for random selection, with each pool containing the DOT–covered employees who are subject to testing at the same required minimum annual percentage rate, or
randomly select such employees for testing at the highest minimum annual percentage rate established for the calendar year by any DOT agency to which the employer is subject.
Although multi–modal pools will be permitted, other specific DOT agency requirements will have to be met, such as the FAA requirement for prior approval of consortium–operated random testing pools.
Consortia
If the employer conducts random alcohol testing through a consortium, the number of drivers to be tested may be calculated for each individual employer, or may be based on the total number of subject drivers covered by the consortium. This will mean that a consortium member could have less than its required number of random tests conducted if the overall consortium rate equals the required rate. Thus, if Employer A has 10 drivers and the consortium has 500 drivers in the pool covering Employer A, and a 50% rate applies, if Employer A chooses to have the rate based on the consortium, the consortium must conduct at least 250 tests even if only four or fewer drivers of Employer A are tested.
A consortium that performs selection and/or testing services as agents for the employer must prepare and provide to the employer complete and comprehensive descriptions of the procedures used by the consortium. An employer must have this information readily available for inspection. The consortium, and an employer who does not use a consortium, must include in these descriptions: how the random selection pool is assembled; the method of selection and notification of drivers; the location of collection sites (at terminals, clinics, "on the road," etc.); methods of reporting the test results on each driver; and summary reports of the consortium's program.
Also, documentation must be provided that the consortium is testing at the prescribed minimum annual percentage rate for alcohol and/or controlled substances. Each employer is at no time relieved of the duty to comply with each requirement of this rule.
Owner–Operators
An employer who employs only himself/herself as a driver, must implement an alcohol and controlled substances testing program that includes more persons than himself/herself as covered employees in the random testing pool. Thus an owner–operator essentially must join a consortium.