This article aims to address some of the most commonly confused FMCSA requirements that regulated companies must follow when it comes to drug and alcohol testing their drivers based on specific circumstances.
Companies that employ drivers that are required to have a Commercial Drivers License (CDL) are required to conduct regular controlled substance and alcohol testing programs. This requirement extends to those drivers currently covered by the rule, including interstate and intrastate truck and motorcoach operations.
Companies subject to these requirements include:
- For-hire and private companies
- Federal, State, local, and tribal governments
- Church and civic organizations
- Apiarian industries
There are a couple of instances where drivers/companies are exempt from these requirements. These exemptions cover:
- Drivers exempt from CDL requirements by their issuing state.
- Active duty military personnel
The FMCSA lists 6 different types of tests based on the different scenarios.
Each scenario requires different levels of scrutiny to ensure compliance as well as proper handling of employees’ private files and rights as US citizens.
No employer shall allow a driver to perform a safety-sensitive function until they have received a negative controlled substance test result.
As soon as practicable following an accident involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol and controlled substances in each surviving driver who:
- Was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life.
- Receives a citation under state or local law for a moving traffic violation arising from the accident.
- If the accident involved: Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident.
- One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
Companies are to randomly test drivers at a minimum annual percentage rate of 10% of the number of drivers for alcohol testing, and 50% for controlled substances testing.
The random alcohol test must be performed immediately prior, during, or immediately after a driver is about to, or has performed a safety-sensitive function as defined in Section 382.107. All drivers must have an equal chance of being selected.
An employer shall require a driver to submit to an alcohol and/or controlled substance test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions concerning alcohol and/or controlled substances laws & policies.
The employer’s determination that reasonable suspicion exists to require the driver to undergo an alcohol and/or controlled substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver.
The required observations shall be made by a supervisor or company official who is trained in accordance with 382.603.
Return to Duty:
Each employer shall ensure that before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by subpart B of this part concerning alcohol or controlled substances, the driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02. Or the driver shall undergo a return-to-duty controlled substances test with a result indicating a verified negative result for controlled substances use.
If a Substance Abuse Professional has determined that a driver needs assistance for the misuse of alcohol, or for use of a controlled substance, an employer must ensure that the driver is subject to follow-up testing.
A minimum of six tests must be conducted in the first 12 months, and the driver may only be subject to this test for a maximum of 60 months.
Documentation Retention Timeframe Requirements:
- Alcohol test results indicating a Breath Alcohol Concentration (BAC) of 0.02 or greater.
- Verified positive drug test results
- Refusals to submit to required alcohol and drug tests
- Required calibration of Evidential Breath Testing (EBT) devices
- Records related to the collection process and required training (https://dot-ready.com/product/drug-alcohol-testing-policy/)
- Negative and canceled controlled substance test results
- Alcohol test results indicating a BAC of less than 0.02 BAC
Location of Records:
All required records shall be maintained in a secure location with limited access, and shall be made available for inspection by an authorized representative of the Federal Motor Carrier Safety Administration upon request.
Further requirements provided by the FMCSA pertaining to D&A testing programs:
1. Every motor carrier shall provide educational materials explaining the requirements of the regulations as well as the employer’s policies regarding alcohol misuse and controlled substances abuse. At a minimum, detailed discussions should include:
- The identity of the person designated to answer drug and alcohol questions.
- Which drivers are subject to these requirements, what behavior is prohibited, and clarification of what a “safety-sensitive function” is.
- The circumstances under which a driver will be tested, and the procedures that will be used for testing.
- Explanations of the requirements that a driver submits to the testing, as well as what constitutes a driver’s refusal to submit to testing.
- The consequences for drivers who have violated the testing requirements.
- Information concerning the effects of alcohol misuse, and controlled substance abuse on health, work, and personal life.
2. When inquiring about a driver’s history while talking with a previous employer, a motor carrier, with the driver’s written authorization, shall inquire about the following information on a driver from the driver’s previous employers for a period of two years preceding the driver’s date of application:
- Alcohol tests with a result of 0.04 alcohol concentration or greater
- Verified positive controlled substances test results
- Refusals to be tested