Regulation Simplified - Drug & Alcohol
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49 CFR part 382 outlines the regulations for Drug and Alcohol Testing. All commercial drivers who hold a CDL and operate a commercial vehicle must be part of a drug and alcohol testing program. All carriers are required to provide a DOT Drug and Alcohol Policy and have CDL drivers sign a receipt for the policy. The receipt should be maintained in your driver qualification file.
Who is subject to the DOT controlled substance (Drug and Alcohol Testing) regulation?
Commercial vehicle drivers who have a commercial driver license.
What types of required testing does the DOT require?
- Pre-employment: Negative results must be returned prior to a commercial driving conducting safety sensitive work.
- Random: All CDL drivers must be in a random drug and alcohol testing program.
- Reasonable Suspicion: Must be observed and documented by a trained supervisor results must be returned before the driver can conduct safety sensitive work.
- Post-Accident Testing: Required if certain criteria are met after a DOT recordable accident.
- Return to duty: This testing is conducted under direction of a substance abuse professional as part of a return to work program after a driver has had a positive drug or alcohol test.
If a driver has a positive test they must undergo the Return to Duty program issued by a substance abuse professional prior to doing safety sensitive work.
Don’t forget all employers of CDL drivers must provide a drug and alcohol policy that meets the Department of Transportation requirements. A policy and educational material must be provided to driver and a signed receipt of policy by the driver must be kept in the driver qualification file.
What are the annual testing percentages for the mandatory random drug and alcohol program for 2018?
What kind of training is required for supervisors that manage drivers?
All companies must train their driver managers (supervisors or those acting in a supervisory role of commercial drivers such as dispatchers) in drug and alcohol reasonable suspicion training. Supervisors must receive:
- 60 minutes of controlled substance training.
- 60 minutes of alcohol training
- A certification of completed training should be issued to the supervisor and a copy must be kept on file by the employer.
- Recurrent training is not a regulatory requirement but recommended as an industry best practice.
- The training can be via online, group, video, and written materials or a combination of resources and training materials.
Only trained supervisors can decide that reasonable suspicion exists to conduct drug or alcohol testing of a commercial driver. The training is not recurrent, it must only be completed once.
What must be included in the required drug and alcohol policy that motor carriers give to their CDL drivers?
Per part 382.601 of the FMCSR’s A receipt signed by the driver that he/she received the policy and must be maintained in the driver qualification file.
The following is required to be in the policy:
- Name and contact of employer representative that manages the program.
- Who is subject to the policy. (remember a stronger company policy can be implemented as long as it meets the basic DOT requirements)
- Information on safety sensitive functions to determine what period of the workday that driver is required to comply.
- Specific information concerning driver conduct that is prohibited.
- Why a driver would be tested under this part. (post-accident, random, pre-employment, return to duty, reasonable suspicion)
- The procedures of those test and how the drivers result, and personal information will be safeguarded. Include procedures and instructions for how the test will be conducted.
- A statement requiring the driver to submit to testing per this regulation.
- A description of what constitutes a refusal to submit and attendance consequences.
- Consequences of driver found to have been in violations of this policy and federal regulation. This should include removing driver from safety sensitive function.
- Consequences for drivers who are found to have an alcohol concentration of .02 or greater but less than .04.
- Information on effects of alcohol and controlled substances on health, work, and personal life. Include signs and symptoms of controlled substance or alcohol abuse and available methods of intervening if problem is suspected. Include any referral information or EAP program.
- The notification that personal information will be reported to the Clearinghouse. It will include:
- 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.
- 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 uses pursuant to §382.213.
- A substance abuse professional (SAP as defined in §40.3 of this title) report of the successful completion of the return-to-duty process.
- A negative return-to-duty test.
- An employer’s report of completion of follow-up testing.
- Optional provision.
- The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer’s authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.
What steps must be taken if a driver is suspected of drinking or under the influence on a controlled substance?
Companies are required to have employees who manage drivers participate in Supervisor Reasonable Suspicion Training. A manager who has taken the training must observe and be able to articulate symptoms the driver is displaying. Observations must include behavioral, speech, physical, and performance indicators. Like slurring of words, smells of alcohol, loss of balance, late for work. These physical observations by the trained supervisor are required and must be documented to proceed under the DOT reasonable suspicion drug or alcohol testing.
Once observations have been made, the driver must be removed for safety sensitive functions and sent for a drug or alcohol test.
The driver should be driven to the location where testing will take place. The driver cannot return to work until a negative test result is returned.
In all cases of positive test results, regardless if the driver is terminated or not, a SAP list must be provided.
What is an SAP, substance abuse professional?
The SAP, a substance abuse professional provides counseling and is qualified by DOT to assess and allow drivers to return to work after a positive drug or alcohol test. All carriers must have a substance abuse professional list and provide it to any driver that has a positive drug or alcohol test. This includes drivers who have taken a pre-employment drug test as part of a conditional offer of employment.
What is required for motor carrier in managing DOT random drug and alcohol program?
Most motor carriers will have a third party assist them with their DOT required random drug and alcohol program. However, motor carriers are still responsible for meeting the regulatory requirements of their programs, even when a third-party provider is involved.
The following includes procedural and regulatory requirements for managing a random drug and alcohol program. One or more people (depending on size of fleet) should be assigned to conduct and follow up on these tasks.
All records for drug and alcohol testing must be kept in a secure environment with limited access.
- Designated Employer Representative (DER). A third party cannot do this for a motor carrier. This person is the point of contact regarding results of testing. This person must be an employee of your company and MUST be clearly identified on the drug and alcohol policy. This is a DOT requirement.
- Track testing percentages to make sure your company will meet the regulatory requirements for annual testing. Best industry practice.
- Update the active and terminated driver list at least monthly keeping the random pool information up to date and accurate. To be DOT compliant the pool must be kept up to date.
- Make sure all management that supervises CDL commercial drivers has taken Supervisors Reasonable Suspicion Training. This is a DOT requirement.
- Sending drivers for random drug and alcohol testing. Random testing programs can be monthly or quarterly. A selected driver MUST proceed straight to testing location once he has been notified that he or she has been selected. Industry best practice is to wait until the driver is in a convenient location and send him/her for the test
- If a driver is selected for a random test but is no longer with the company, make a note of his discharge date and notify your third-party provider know so they can make another selection. This is a DOT requirement.
Note that you are responsible for your drug and alcohol testing program, so if the third party provider makes a mistake your company will be held responsible.
Is hair follicle testing accepted by the DOT and FMCSA as a regulated drug test?
No, not at this time though they are reviewing it.
When does your company need to complete a post-accident drug and alcohol test?
49 CFR Part 382.303.
Post-accident testing is required if:
- A moving violation (citation) was given to your company’s CDL driver AND
- Someone was taken from the scene for immediate medical attention, (beyond first aid)
- If a moving violation (citation) was given to your company’s CDL driver AND
- One of the vehicles involved had disabling damage and was towed from the scene
- A fatality occurs
Testing must occur within:
- Eight (8) hours for the alcohol test.
- Thirty-two (32) hours to complete the drug test.
If the test is not completed document, why the test was not completed. This documentation will be requested at time of audit. You must document every two hours from time of the accident why test was not conducted. Make sure you track the date and time as well as the reason it was not conducted.
Not all DOT recordable accidents required a DOT post-accident drug and alcohol test. See Accidents & Risk.
What is an annual MIS Report?
A MIS (management information system) report provides the FMCSA a verification that motor carriers are completing the requirements for the random drug and alcohol program. A MIS report should be created (or provided annually if using a third-party provider) and kept on file by the participating motor carrier. In January of every year the FMCSA creates a random selection of motor carriers that must submit the report for the previous year. Your company will be notified if you are selected. 100% compliance to this request by FMCSA is expected. A fine is assessed for every date passed the deadline for submission.
Drug and alcohol Clearinghouse
The Clearinghouse will receive information nationwide on all DOT driver drug and alcohol testing.
Dates to Remember
- Fall 2019 – Registration opens and employers, TPA’s, and consortiums can register for use of the Clearinghouse
- January 6, 2020. Clearinghouse becomes operational – All employers must start conducting electronic queries via the Clearinghouse and report information on driver drug and alcohol program violations.
- January 6, 2023 – Employers no longer need to do both a drug and alcohol background by going direct to previous employer and querying the Clearinghouse.
What is included and must be reported to the Clearinghouse?
- Controlled substance test reporting will include verified positive, adulterated substituted controlled substances test results, and/or negative return to work tests.
- This must be reported by the MRO within 2 business days of making a determination of the test.
- Alcohol test results must be reported if confirmed of over .04 and negative return to duty testing.
- These must be reported to the Clearinghouse by the employer by the end of the third business day.
Employers must register to get access to the Clearinghouse the registration will be good for five years. All employers will be required to query this Clearinghouse prior to allowing a driver to do a safety sensitive function. Employers will be required to get written or electronic consent from the driver prior to querying the Clearinghouse.
Employers will be required to query the Clearinghouse once a year for all employees that are subject to DOT required controlled substance program.
What drug and alcohol documents does a motor carrier need to retain?
Motor carriers should retain all drug and alcohol testing results, a copy of the chains of custody, all MIS reports, any and all documents and records pertaining testing or calibration of testing equipment if it applies. See recordkeeping requirements below.
Fleets are required to retain records for the following:
- One year for negative drug tests or alcohol test under.02.
- Two years for documents related to the collection process.
- Three years previous employment records.
- Five years for annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results. EBT calibration documentation.
Best industry practices and tips from safety professionals.
- Best practice is to do both the drug and alcohol test when the driver is release from the scene with the first eight (8) hours.
- If no test conducted but was required, documentation of the reason, the date, and the time it was determined they could not test. This should be kept on file with your company.
- Fatality accidents always require a post-accident drug and alcohol test!
- Double check your companies’ random program in early November of every year to make sure you are going to meet annual random testing percentages for drug and alcohol testing. You can increase drivers’ names pulled if you need to meet required testing percentages. Third party providers should be monitored closely.