DER as contact person

• The DER has a critical role in DOT drug and alcohol program management.

The focal point of any effective DOT drug and alcohol testing program is its designated employer representative (DER).

The following details the roles and responsibilities the DER has, and as you will discover, this motor carrier employee has a lot of responsibility to ensure the letter of the law is carried out.

What are the requirements to be DER?

The DER is a point of contact for both questions and problems that occur during DOT drug and alcohol testing. The regulations are very clear that a service provider cannot take on this role. It must be an employee of the motor carrier. But it should be noted that a consortium/third-party administrator (C/TPA) may receive test results from the medical review officer (MRO) if contracted to do so, so long as the MRO is aware of this relationship. But only the DER may take action to remove the driver from a safety-sensitive function or direct a driver for a mandatory retest.

Roles & responsibilities with service providers

The following is a quick overview of the duties assigned to a company’s DER.

The DER interacts with a variety of service providers:

• C/TPAs, if contracted to conduct a random draw, will send the confidential list to someone at the carrier, often the DER. If the C/TPA has been given the ability to receive results from the MRO, test results are forwarded from the C/TPA to the DER.
• Collection sites will contact the DER in the event there is a problem at the collection site such as the driver showing up late or not at all, an insufficient amount of specimen, etc. The collection site is provided with the name and phone number of the DER.
• Labs will not dialogue with the DER. Only the MRO will learn of results or problems of incoming specimens.
• MROs will contact the DER in the event the driver needs a recollection under direct observation. The MRO will also discreetly contact the DER during the verification process if the MRO cannot personally reach the driver. The DER then tries to contact the driver to relay the message to contact the MRO directly. To ensure privacy, no details are given to the DER by the MRO about why the MRO is contacting the driver.
• SAPs will send their reports to the DER after a driver has completed the evaluations and treatment after a DOT drug and/or alcohol violation. The DER is given the go-ahead to send a driver for a DOT return-to-duty test and instructed on the follow-up test schedule.

Interacting with drivers

The DER has the job of tactfully interacting with the drivers. The job of DER requires complete confidentiality.

The DER may, but not necessarily, be the party who notifies the driver of a required test. But the DER will be the party who will receive the call if the driver does not show up or experiences other problems in testing. The DER also receives test results and other communications for the employer from the MRO (or C/TPA if designated to be the go-between). When the driver is subject to a mandatory recollection under direct observation, it is the DER who receives the call directly from the MRO.

When a driver violates the prohibitions in Subpart B of Part 382, the driver needs to be removed from the safety-sensitive function. This is the DER’s responsibility. This may involve contacting a location manager or immediate supervisor of the driver depending on the nature of the organization and the DER’s relationship to the driver. In other instances, the DER communicates directly with the driver.

Auditing service providers

• Motor carriers will receive fines and penalties from the FMCSA for mistakes made by service agents contracted to assist with facets of DOT drug and alcohol testing.
• To help ensure compliance, motor carriers should verify a service agent’s credentials and practices.

When a motor carrier establishes and maintains a drug and alcohol program under the authority of the U.S. Department of Transportation (USDOT), it assumes complete responsibility for compliance regardless of the actions of its service providers. This means, in realistic terms, a motor carrier will be the party to receive fines and penalties for violations, which are the result of someone else’s errors such as a collector that USDOT has no authority over.

What is a service agent?

Service agents include businesses and individuals that contract with a motor carrier as part of its DOT drug and alcohol compliance program. They include consortium/third-party administrators (C/TPAs), medical review officers (MROs), collection sites, labs, and substance abuse professionals (SAPs). All except the C/TPAs have minimum requirements in order to act as a service agent. Employers are responsible for ensuring the business meets the minimum criteria to act as an agent.

Consortia/Third-party administrators

This vendor is not one that requires any formal training of its program administrators. The services range from running random selections to full management of programs and auditing and storage of records.

You may wish to ask a potential or current C/TPA about its training, security of records, and vetting of its employees. The information they are handling requires not only a detailed understanding of the regulations, but also the utmost concern for confidentiality and security, as personally identifiable information is on the documents they will be processing.

Contracting with labs

It is easiest to confirm the laboratory’s qualifications to play a role in your DOT program. Only Health and Human Services certified laboratories may process your drivers’ specimens for drug screens. The lists of approved labs appears monthly in the Federal Register via an entry through the Substance Abuse and Mental Health Service Administration (SAMHSA). The updated list appears on SAMHSA’s website.

Labs may be certified to analyze urine and/or saliva for the presence of drugs.

MRO credentials

Only licensed physicians (Doctors of Medicine or Osteopathy) who meet the criteria in 40.121 may act as an MRO. This entails a “basic knowledge” about controlled substances abuse disorders, medical explanations for confirmed drug test results, and issues relating to adulterated and substituted specimens, and an understanding of the “DOT MRO Guidelines.”

MROs must undergo an initial “qualification training” that includes an exam. Once every five years, the MRO must satisfactorily complete “requalification training” followed by successful completion of another exam.

The MRO must maintain documentation of the training and make it readily available to an employer or C/TPA negotiating services.

SAPs training

Similar to MROs, SAPs must be licensed counselors with qualifications that fit within the scope of titles listed in 40.281(a). Plus, SAPs must meet the “basic knowledge” requirements on diagnosis and treatment of alcohol and drug-related disorders and have a good grasp of the document, “DOT SAP Guidelines.”

The SAP must successfully complete “qualification training” on DOT protocols and pass an exam. SAPs must, within three years, partake in continuing education courses. The SAP must maintain documentation of the training and make it readily available to an employer or C/TPA negotiating services.

This is important to employers, since they may be asked by DOT (in the event of an investigation) if they have verified the names on their SAP list. This is the actual list the employer would intend on providing to a driver who tests positive or refuses a DOT test. Employers cannot assume that SAPs have met the continuing education stipulation and should therefore check to make sure SAPs are still qualified.

Collection sites

Both drug collections and alcohol tests require specific training for the personnel. This involves knowledge in basic information and keeping current with changes, qualification training, initial proficiency demonstration, and refresher training once every five years.

In addition, if the collector, breath alcohol technician (BAT), or screening test technician makes a mistake in the testing process that causes the test to be canceled (i.e., fatal flaw or uncorrected flaw), the collector must undergo error correction training. The facility must ensure this take place within 30 days of the date they are notified of the error that led to the need for retraining. The retraining must be documented.

The collection site must maintain documentation and make it readily available to the employer or C/TPA negotiating services.

Consortium/Third-party administrators

• Companies can contract with a consortium/third-party administrator to outsource the administrative functions of DOT drug and alcohol testing program compliance.

Some companies perform Department of Transportation (DOT) recordkeeping and random selections themselves. Others may not have the in-house expertise or the available manpower to administer the program as effectively as the company would like and opt to outsource. Management will have to weigh the pros and cons of outsourcing the administrative functions before entering into a contract with a consortium/third-party administrator (C/TPA).

A C/TPA is one common method of reducing an employer’s administrative challenges and associated costs of managing a testing program.

C/TPAs are entities that provide testing services required by the regulations and that act on behalf of the employers. C/TPAs can provide an array of contracted services that otherwise would have to be arranged by the employer. Examples include education and training, specimen collection, laboratory analysis, and medical review officer services.

The C/TPA may also manage the DOT random selection on behalf of the motor carrier. For the motor carrier with relatively few commercial driver’s license (CDL) drivers, the carrier may contract to have the drivers placed in a random selection representing multiple employers. The consortium model allows for a greater pool from which to select names.

Note that owner-operators and other one-driver operations must be placed in a consortium since the Federal Motor Carrier Safety Administration requires a random pool consisting of two or more persons according to 382.103(b).

Testing sites

• Selecting competent testing facilities is an important component of a company’s DOT testing program compliance.
• Employers should consider several factors before choosing a service provider.
• Creating a checklist of questions on cost and services is beneficial when vetting providers.

Company compliance depends on reliable service providers. As employers create and maintain a Department of Transportation (DOT) testing program, one important component is the selection of competent testing facilities.

Remember, any errors that service providers make are still employer mistakes because the company is the DOT-regulated entity. Before creating a contract with a specific facility, consider the following:

Knowledge: By physically visiting a potential collection site, a company will be able to determine the level of understanding its staff has about the collection process, the regulations, and DOT protocols. Don’t underestimate a gut feeling of the collection site’s competency. How collectors respond to questions will reveal an ability to carry out the company’s compliance efforts. Employers have the right to ask about the training and qualifications of the collectors. The collection site is supposed to be prepared to show training documentation to employers wishing to utilize or currently using its services.

Layout: Employers who visit a potential collection site should take note of the physical layout of the facility. Does it meet the requirements for privacy and security set forth in 40.221 and 40.223 for alcohol tests and 40.42, 40.43, 40.47, and 40.48 for drugs? The convenience of the location, distance from the terminal, and hours of operation may play a factor in the company’s selection. A company might inquire about portable services versus fixed locations. This service may be available for both terminal visits and dispatches to post-accident scenes.

Cost and services: A checklist of the items that the company wishes to ask to determine available services, costs associated with each, and price breaks if the company assumes some of the responsibilities will assist in facility selection.

Provided below are some basic questions to pose as you consider your current and/or prospective collection sites:

• Do they offer both drug and alcohol testing?
• Do you offer both urine and oral-fluid drug testing?
• Are they willing to come onsite for an after hours’ collection?
• May you set up appointments?
• Do hours of operation work with your current shifts?
• Will they remain open beyond business hours in the event of a shy bladder?
• Are they able to provide training records for personnel, including refresher and error correction training?
• Is the location convenient? Does it offer parking?
• Will they provide references from other DOT-regulated employers
• What is the method/frequency of sending paperwork to the motor carrier?
• Will they keep a reserve of the preprinted employer-specific forms for you at the collection site?

You also need to make sure they are using the appropriate DOT-approved forms, drug collection kits, and alcohol testing devices. You may wish to ask for the model numbers of the alcohol testing devices and compare them against the official list.

Other questions to ask the collection site:

• Do employers have a choice of labs to send the specimens to, or is the company locked into a preferred lab and subsequently its set fee?
• Do employers have a choice of medical review officers (MROs), or is the company locked into a preferred MRO and subsequently the MRO’s fee?
• If they offer both urine and oral-fluid (saliva) drug testing, are collectors cross-trained on each testing method? You need to know availability of staff in the event you have opted to use an alternate testing method, when applicable. Are they equipped to handle the request?
• Does the facility offer both saliva screening alcohol tests and evidential breath alcohol testing? Inquire as to the training the collection site has provided its alcohol testing personnel for each testing method. Ask if personnel are cross-trained on each testing method to know availability of staff.

Handling problems in testing. Even though infrequent, there may be instances in which something out of the ordinary happens during testing. You need to make sure your collection site knows and is following appropriate DOT procedures.

Following are some additional questions to pose to your service providers:

• Do they have same gender observers readily available?
• Will they provide a name as a primary contact at the collection site for questions or concerns?
• Is there a secure means of providing information to and from the collection site?
• What procedures are in place to handle and communicate refusals to test (e.g., belligerent donor, showing up late, substitutions, adulteration attempts, etc.)?
• Is the facility willing to provide proof of error correction training in the event a collector’s actions results in a canceled test?

It is important to get the facts before making a decision. Unfortunately, in some rural areas, choices may be limited. Nevertheless, make sure the local clinic or hospital can perform DOT tests in accordance with the regulations. If those facilities are not, a company’s drivers may need to travel a certain distance to reach a facility that has properly trained technicians and properly equipped facilities. This is probably more applicable to alcohol testing since only DOT-approved alcohol equipment may be used.

On-site audits of collection sites

• Some carriers may wish to take their audit of the collection site’s performance to another level through an agreement for an on-site visit.
• This would be one of those items you ask about as you develop your contract with the site.

The intent of the visit is to ensure that DOT procedures, equipment, and privacy stipulations are being followed. You would schedule an appointment for this mock collection; note that a specimen is not actually provided. You need to familiarize yourself with the steps in DOT testing.

Your calendar should be cleared for at least an hour. When you walk in, you will have the “driver” experience. When you arrive, observe the waiting room. Is it crowded? Does it appear as though donors are made to wait?

Someone from the facility should walk you through each step of the process, including the intake process of signing in and showing identification. Personnel should take you to the same room a driver would be led. You can see whether:

• Forms are completed properly,
• For urine specimens, water is turned off in the bathroom, there is no access to soap or other adulterants, and the toilet water is blue, and
• There is a level of privacy.

By the end of the visit, you should be able to measure the collection site’s performance.

Providing collectors with necessary information

• Some DOT drug and alcohol recordkeeping problems may stem from the information provided (or not) to the collection site by the employer.

Most motor carriers have experienced some sort of recordkeeping frustration associated with their DOT drug and alcohol testing program, such as minor administrative errors on a chain of custody form (CCF) or not receiving a drug test result. Some of the errors could have been avoided had the motor carrier provided necessary data elements.

Supply 11 key data elements

Did you know that 40.14 requires employers (or consortium/third-party administrator (C/TPA)) to provide collectors with specific information relevant to the drug collection process? The employer must make sure the following information is made available to the collector:

1. Specimen type to be collected (oral fluid or urine) via a standing order.
2. Full name of the employee being tested.
3. Employee CDL number.
4. Laboratory name and address.
5. Employer name, address, phone number, and fax number.
6. Designated employer representative (DER) information as required in 40.36.
7. Medical Review Officer (MRO) name, address, phone number, and fax number.
8. The DOT agency which regulates the employee’s safety-sensitive duties.
9. Test reason, as appropriate: pre-employment, random, reasonable suspicion, post-accident, return-to-duty, and follow-up.
10. Whether the test is to be observed or not (see 40.67).
11. Optional information including C/TPA name, address, phone, and fax number.

Numbers 3, 4, 6, 7, and 10 may be preprinted on the CCF.

Standing orders on drug-testing method

A standing order is a document created by the employer that clearly identifies when urine or saliva will be the preferred drug testing method. Even if a carrier sticks with urine or goes completely with saliva specimens, it must communicate its decision to the collection site.

The standing order typically reflects the unique nature of each drug testing method:

• Saliva drug testing shows more recent drug use, while urine reveals more chronic drug use; and
• Saliva drug testing is always under direct observation and less intrusive than urine testing.

Carriers may elect to have a hybrid model incorporating in both urine and saliva drug tests. To incorporate both urine and saliva drug tests, the collection site must be alerted via a standing order based on reason for testing, need for direct observation, and instances of insufficient specimens.

Following are a few examples of the standing orders provided to collectors:

• Saliva is the preferred drug testing method for reasonable suspicion, post-accident, return-to-duty, and follow-up drug testing.
• Urine is the preferred drug testing method for pre-employment and random testing.
• Saliva is the preferred drug testing method for all direct observation collections.
• Saliva tests shall be used as an alternate testing method when there are problems during urine collections (e.g., temperature out of range, shy bladder).
• Urine testing will be an alternate testing method if the saliva collection resulted results in a dry mouth.

After creating a standing order document, the carrier must make ensure its designated employer representative and drivers know when each testing method will be used.

Consequences of incomplete information

If a piece of information is missing or inaccurate, the test may wind up in the great abyss of missing test results. How does this happen? It may be as simple as an incorrect driver’s identification number written on the form, creating a problem in providing the results to the employer.

In some other instances, the collector may not have a CCF with preprinted information, and has to edit one that is on hand. This makeshift CCF may:

• Be sent to a lab and/or MRO that does not have an account with you to provide results; and/or
• Contain inaccurate or incomplete motor carrier contact information. For instance, the phone and address are not entered correctly, or another employer’s CCF is used without removing its lab account or name so all parties involved (collection site, lab, and MRO) are unable to attribute the test to your company.

Reducing errors

So what’s the solution? Some carriers have found success using a network of collection sites that:

• Contract with them,
• Have preprinted CCFs on hand, and
• Will communicate the need to replenish CCFs.

When your driver is subject to a DOT post-accident drug screen in an area with limited options for testing (i.e., outside your network), you might consider having a preprinted CCF in every commercial motor vehicle. The driver simply provides the form to the collector, reducing the chance of a lost test result.

Drug-testing labs

• To be compliant with DOT regulations, labs must be certified by the HHS for drug testing.

Employers may only use laboratories certified by the Department of Health and Human Services (HHS) for drug testing. Each month an agency within HHS, the Substance Abuse and Mental Health Services Administration (SAMHSA), publishes its list of certified laboratories in the Federal Register. Certified laboratories must follow the procedures in Subpart F of Part 40 when conducting DOT drug tests.

Labs may be certified to process urine and/or oral-fluid (saliva) specimens for DOT drug testing.

Employers may not use labs outside of the HHS list and may not process specimens using on-site testing methods for immediate results. Drug testing specimens must be collected, shipped, processed, and results reviewed in accordance with Part 40 procedures.

Medical review officers

• Medical review officers confirm test results, check the lab’s performance, and check the chain-of-custody for employers.
• Companies should only use licensed and trained physicians as MROs.

The medical review officer’s (MRO) responsibility is a significant function within the testing process. The MRO’s job is to provide a “clinical confirmation” of a presumptive positive as reported by the laboratory.

Essentially, a positive test is initially a scientific conclusion which then must be legitimized by medical considerations made by the MRO. The MRO then determines whether a true positive exists. The laboratory reports the result directly to the MRO for a professional review of the results which will only be reported to the company after a “clinical confirmation” has been achieved by the MRO.

This is likely to be the most critical decision employers make within a testing program. The MRO will have more contact with the company than anyone else within the program. The person will become the company’s “agent” providing final analysis of the total process and representing the company in any challenge litigation that may evolve.

MRO chief duties include:

• Verify results, both negative and positive;
• Check the lab’s performance; and
• Check the chain-of-custody.

Seek out only licensed physicians (Doctor of Medicine or osteopaths). MROs must meet the knowledge, training, and education requirements described in 40.121. There are professional bodies which provide certification such as AAMRO (American Association of Medical Review Officers) and MROCC (Medical Review Officer Certification Council). This certification guarantees a knowledgeable and competent MD; it is the assurance a company should demand from a qualified professional. The websites of these organizations include searchable databases of certified MROs to help employers find an acceptable one:

• American Association of Medical Review Officers
• Medical Review Officer Certification Council

Steps in the MRO’s verification process

• The MRO must follow specific DOT procedures when discussing non-negative test results with a driver.

When the Medical Review Officer (MRO) has to speak with the driver about a non-negative drug test result, the MRO has specific protocols to follow before being allowed to make a determination with or without speaking with the driver.

Steps to make contact with the driver

Interestingly, the driver is given six opportunities to speak with the MRO as the verification process plays out.

Step 1.

The MRO calls the driver using the phone numbers on the DOT testing form, making three attempts in a 24-hour period.

• If unable to make contact, the MRO documents the attempts and goes to Step 2.
• If able to make contact, the MRO speaks with the driver about a possible medical explanation for a positive, adulterated, substituted, or invalid result.

Step 2.

The MRO tells the company’s designated employer representative (DER) to contact the driver with instructions to immediately contact the MRO.

Step 3.

DER calls the driver using the phone numbers on the DOT testing form making three attempts in a 24-hour period.

• If unsuccessful, the DER must leave a message for the driver and may place the driver in a medically unqualified status or on medical leave.
• If successful, the DER must notify the MRO of the date and time contact was made and inform the driver that the driver has no longer than 72 hours to respond or face a positive or refusal to test.

What happens during the driver interview?

The MRO must explain certain things to the driver during the conversation, including the test results and the verification process. The driver must be told that any additional medical evaluation that is requested must be pursued — or it is considered a refusal to test.

For a claim of a legally obtained prescription, the MRO will take all reasonable and necessary steps to verify the authenticity of all medical records the employee provides and even contact the employee’s personal physician or pharmacist. The driver is also told that information will be provided to third parties without the need for consent in accordance with 40.327. If the MRO calls the driver’s fitness for duty into question, the driver will be given the opportunity to change any legally prescribed medication within five days. In other words, the MRO will not contact the third parties right away.

Also, during the MRO’s conversation with the driver, the MRO must communicate the split specimen option and procedures. The employee has 72 hours from the time the MRO provides this notification to request a test of the split specimen. The employee is given instructions on how to contact the MRO to make the request, including phone numbers or other information that will allow the employee to make this request. The MRO must have the ability to receive the employee’s calls at all times during the 72-hour period, which can include an answering machine or voicemail with a time stamp feature.

The MRO must also tell the employee that the employer cannot deny a request made within the 72 hours. In addition, the driver must be told that the employer cannot require payment for the test before the test takes place, but the employer can seek reimbursement later. The MRO will also inform the employee that additional tests on the specimen are prohibited. For example, a driver who claims the specimen belongs to someone else cannot request DNA tests.

What happens if the driver and MRO don’t connect?

There are three circumstances in which the MRO may verify a result without an interview with the employee, including:

1. If the employee expressly declines the opportunity to discuss the test with the MRO.
2. If the DER has successfully made a contact and instructed the employee to contact the MRO and more than 72 hours have passed.
3. If neither the MRO nor the DER, after making and documenting all reasonable efforts, has been able to contact the employee within ten days of the date on which the MRO receives the confirmed test result from the laboratory.

After the MRO has verified a test result and reported the result to the DER, the MRO must allow the employee — within 60 days of the verification — to present documentation that serious illness, injury, or other circumstances unavoidably precluded contact with the MRO and/or DER in the times provided. On the basis of such information, the MRO may reopen the verification, allowing the employee to present information concerning whether there is a legitimate medical explanation of the confirmed test result.

Substance abuse professionals

• A company’s SAP must be credentialed.
• The DOT requires SAPs to be knowledgeable in specific areas.
• A SAP’s basic responsibilities begin when an employee violates DOT drug or alcohol rules.

To be permitted to act as a substance abuse professional (SAP) in a Department of Transportation (DOT) drug and alcohol testing program, a person must have one of the following credentials:

• Licensed physician (Medical Doctor or Doctor of Osteopathy),
• Licensed or certified psychologist,
• Licensed or certified social worker,
• Licensed or certified employee assistance professional,
• State-licensed or certified marriage and family therapist, or
• Drug and alcohol counselor certified by an organization listed on the Office of Drug and Alcohol Policy & Compliance (ODAPC) website.

Knowledge

In order to act as an SAP, the credentialed individual must:

• Have knowledge of, and clinical experience in, the diagnosis and treatment of substance abuse;
• Be knowledgeable about the SAP function as it relates to employer interests in safety-sensitive duties;
• Be knowledgeable about Part 40, applicable DOT regulations affecting the employers, and the DOT SAP Guidelines; and
• Receive qualification training and continuing education.

The DOT requires SAPs to keep current on any changes to these materials. SAPs must subscribe to the Office of Drug & Alcohol Policy & Compliance (ODAP) list for email updates. DOT agency regulations, DOT SAP Guidelines, and other materials are also available to the SAP from ODAPC.

Note that an SAP, who is otherwise fully qualified under Part 40, must not perform evaluations outside the geographic jurisdiction for their credential(s). If the SAP who made an evaluation exceeds their geographic jurisdiction, the employee will not be required to seek the evaluation of a second SAP.

SAP’s role

The basic responsibility of the SAP is to:

• Provide a comprehensive assessment and clinical evaluation of an employee who has engaged in prohibited behavior (Subpart B to Part 382), and
• Determine whether the employee needs assistance resolving alcohol or drug abuse-related problems.

At the SAP’s discretion, the initial and follow-up evaluations may be performed face-to-face in-person or remotely. If a SAP is not prohibited from using technology within the parameters of the SAP’s state-issued license or other credential(s), a remote evaluation must be must be conducted in accordance with the following criteria:

• The technology must permit real-time audio and visual interaction between the SAP and the employee; and
• The quality of the technology (e.g., speed of the internet connection and clarity of the video display) must be sufficient to allow the SAP to gather all the visual and audible information the SAP would otherwise gather in an in-person, face-to-face interaction, while providing security to protect the confidentiality of the communications at the level expected by industry standards for remote substance abuse evaluations.

If the employee is found to need assistance as a result of the assessment, then the SAP recommends a course of treatment with which the employee must comply before returning to safety-sensitive functions. If the employee successfully completes the course of treatment, the SAP will provide the employer with a report with the follow-up program based on the evaluation of the driver.

Key definitions

• For training purposes, several key definitions apply to DOT drug and alcohol program management.

The following key definitions will be useful when training those who supervise drivers subject to the Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol program regulations:

Alcohol — The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol.

Articulable — Clearly described observations made by a trained supervisor leading to the DOT reasonable suspicion test. Something that cannot be accurately put into words on the supervisor’s report is not articulable.

Contemporaneous — The signs and symptoms of drug or alcohol use occurring as the trained supervisor observes them. Something a supervisor saw, for instance, yesterday is not a contemporaneous observation.

Drugs — Under Department of Transportation (DOT) drug testing regulations, “drugs” are those for which tests are required, including:

• Marijuana
• Cocaine
• Amphetamines
• Phencyclidine (PCP)
• Opioids

Driver — Any person who operates a commercial motor vehicle. This includes, but is not limited to full-time, regularly employed drivers; casual, intermittent, or occasional drivers; and leased drivers or independent owner-operator contractors.

Reasonable suspicion — The employer’s determination — based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver — to require the driver to undergo an alcohol and/or drug test. The observations may include indications of the chronic and withdrawal effects of controlled substances.

Supervisor — An employee of a motor carrier who has been designated as a driver supervisor in order to request a DOT reasonable suspicion test. The supervisor must receive the 60-minute training on drug use and an additional 60 minutes of training on alcohol misuse to be qualified to assume a role as a driver supervisor.

Driver drug and alcohol training

• Employers are required to provide educational materials to drivers prior to the start of DOT drug and alcohol testing.
• While not required, it’s best practice for employers to provide refresher training to drivers on a scheduled basis.
• Most training is provided via written company policy, though a variety of written formats are acceptable.

Drivers who operate commercial motor vehicles (CMVs) in the United States, requiring a commercial driver’s license (CDL), or Mexican or Canadian equivalent, are subject to Department of Transportation (DOT) drug and alcohol testing.

Drivers include anyone performing a safety-sensitive function under a motor carrier’s authority, including part-time, occasional, or intermittent drivers; owner-operators leased on to the carrier; drivers from staffing services; and drivers borrowed from other motor carriers. CMV drivers are performing safety-sensitive functions based on the nature of the vehicle assigned.

Employees who hold job titles other than driver (e.g., supervisor, technician, yard worker) are subject to DOT testing if the person is called upon to operate a CMV requiring a CDL. It may even be the president of the company. Everyone who is expected to drive this vehicle type must be included in the company training program.

When is DOT driver training required?

After being hired for or transferring into a position requiring a CDL (safety-sensitive position) and prior to the starting of DOT drug and alcohol testing, drivers must be given educational materials that explain the testing requirements.

The regulations do not require refresher training for drivers, but many companies revisit the drug and alcohol topic on a scheduled basis. Some carriers perform training after DOT rules are revised or DOT testing policies are updated.

What topics should employers cover?

Section 382.601(b) of Federal Motor Carrier Safety Regulations (FMCSRs) requires that drivers be given information in the company policy.

What medium may be used to present the topics?

Many of the components that must be covered with drivers may be incorporated into a company’s DOT drug and alcohol policy. But the regulations do not specify that the elements be in the form of a policy.

Section 382.601 uses the term “educational materials.” These may be in the form of a policy, handbook, handouts, and so forth. Whatever format the employer elects to use must be distributed to the drivers.

The FMCSRs do not require formal training such as a class, video, or online tutorial, but many carriers find it beneficial to hold training, in addition to providing the required written materials. By having a class or going over the materials one-on-one with new hires, the employer is ensuring that drivers are instructed on and understand key points of the DOT testing program.

The drivers must sign a statement certifying that workers received a copy of educational materials. If provided in multiple formats, a best practice may be to identify each in the signed receipt (e.g., company policy and a handbook/handouts) or collecting a receipt for each.

Supervisor reasonable suspicion training

• Supervisors who request DOT reasonable suspicion drug or alcohol tests based on observed behaviors and/or physical signs must be trained.
• Employers can train supervisors through classroom training, online courses, computer-based programs, reading materials, and video presentations.

Motor carriers are subject to Department of Transportation (DOT) drug and alcohol testing requirements if employees operate commercial motor vehicles requiring a commercial driver’s license (CDL). The operators of these vehicles are performing safety-sensitive functions. One provision within Part 382 is supervisor training. This training in 382.603 is required for the individual who is requesting a DOT reasonable suspicion test (382.307). If someone is not trained, the person is not qualified to request the test based on observations.

Who is a supervisor?

It is important to identify supervisory personnel. In the trucking industry, this is especially difficult because the dispatcher does not have contact with the driver after the truck leaves the terminal and is often not present when the driver returns. The regulations prohibit reasonable suspicion from being based on third-party reports. Therefore, it is important that people who are placed in positions of responsibility for assessing employee fitness be well informed as a part of the training, particularly about the limitations imposed by the regulations.

How can a motor carrier avoid potential safety risks when drivers have so little face-to-face contact with an immediate supervisor? Consider:

• Expanding the company’s definition of supervisor. There is no reason that other management and administrative personnel cannot be trained as driver supervisors, empowering them to perform the observations needed for reasonable suspicion.
• Developing a policy for observations made by others. By having a company policy detailing the non-DOT consequences for drivers who are reported to be under the influence of drugs or alcohol, employers can deal with a situation before it arises. (Remember: A test would not be allowed under DOT unless the driver’s trained supervisor was able to make the observations directly.) It is important that any policies created for actions under a company’s independent authority are within the confines of state and local privacy, labor, and drug/alcohol testing laws. Consider having an attorney review any non-DOT actions.

How is training performed?

The drug and alcohol testing regulations do not address the medium required to train a supervisor on reasonable suspicion. Options may include classroom training, online courses, computer-based programs, reading materials, and video presentations. The material may be provided by a vendor or created by the employer.

The rules also do not require a facilitator to train the supervisor. The employee could work independently to complete the course materials.

What should be included in supervisor training?

Unlike most of the Federal Motor Carrier Safety Administration’s (FMCSA) regulations — where the requirements are strictly spelled out — the exact content of and degree of detail in the training is left up to the motor carrier.

The FMCSA requires that supervisors have at least one hour of training on controlled substances use and an additional hour of training on alcohol misuse. Based on how the regulation (382.603) is worded, the two topics must be kept separate.

The training must cover the specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver that lead a supervisor to approaching the driver and requesting the test type. Those who develop training programs will detail the signs and symptoms of alcohol use and the drugs identified in the DOT definition (40.85) including marijuana, cocaine, amphetamines, opioids, and phencyclidine (PCP).

Recurrent training is not required. In addition, a driver supervisor who received the required reasonable suspicion training does not have to retake the training when the person assumes a driver supervisor role for another carrier. The new employer, however, will need proof of supervisory training in order to forego training at its company.

Criteria for pre-employment testing

• DOT pre-employment testing requirements vary by situation.

Whether Department of Transportation (DOT) pre-employment testing must be conducted varies according to the situation. The following scenarios specify when the Federal Motor Carrier Safety Administration (FMCSA) does and does not require testing:

• A new employer just started operating commercial motor vehicles (CMVs) that require commercial driver’s licenses (CDLs) in commerce. All drivers that would be hired to drive CMVs will fall under the pre-employment testing requirements.
• Employer A purchases Employer B. If Employer B had a DOT alcohol and drug testing program in place, the pre-employment testing requirements would not apply to Employer A because the drivers’ employment and testing status has not been interrupted. However, if the drivers had to reapply for existing positions, this is an interruption of employment and testing requirements apply.
• When an employer changes its name, pre-employment testing is not required.
• An employer is organized in divisions and subsidiaries.
  • In any case where a driver is transferred from one division to another under a common DOT number, the pre-employment requirements would not apply. Under this scenario the employer is one corporate entity.
  • If a driver is transferred from one wholly owned subsidiary to another (switches from one DOT number to another), a pre-employment test is needed. Each subsidiary is considered a separate corporate entity.
• A driver operates vehicles for which a CDL is not required. At a later date, the driver transfers into a position requiring a CDL for the same employer. A pre-employment test would be required because the driver becomes subject to Part 382 due to the vehicle the person will be required to operate.
• 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.

Exceptions to FMCSA pre-employment drug testing

• Drivers must meet specific criteria to qualify for the DOT pre-employment drug testing exception.
• Trip-leased or loaned drivers may also be excepted.

A driver who has recently participated in a Department of Transportation (DOT) testing program under another motor carrier may qualify for the DOT pre-employment drug testing exception (382.301(b)).

To claim the exception to pre-employment testing, the driver must meet the following criteria:

• Must have participated in a drug testing program meeting the requirements of Part 382 within the previous 30 days; and
• While participating in this program, must have either:
  • Been tested for drugs in the previous six months, or
  • Participated in a random drug testing program for the previous 12 months; and
• Does not have any DOT drug testing violations (positive, refusal to test) in the previous six months.

To take advantage of this exception, the motor carrier must contact the previous testing program prior to using the driver and obtain the following information (as required in 382.301(c)):

• The name and address of the program. This would generally be the driver’s prior and/or current employer.
• Verification that the driver participates or participated in the program.
• Verification that the program conforms to the required procedures set forth in 49 CFR Part 40.
• Verification that the driver is qualified under Part 382, including that the driver has not refused to submit to an alcohol or drug test.
• The date the driver was last tested for alcohol and drugs.
• The results of any DOT drug or alcohol test administered in the previous six months, and any violations of the alcohol misuse or drug rules.

The motor carrier must provide specific written consent from the driver authorizing release of the information.

A driver is not permitted to perform a safety-sensitive function until the new employer receives the documentation of the exception from the prior testing program.

Using the exception with intermittent drivers

An employer that uses a driver more than once per year — but does not employ the driver (i.e., a trip-lease or loaned driver) — can take advantage of the exception to pre-employment testing explained in the previous section. But the employer must confirm once every six months that the driver participates in a DOT-compliant drug testing program.

For instance, Employer A uses a driver to operate commercial motor vehicles (CMVs) for two or more times in a 365-day period, but the driver is regularly employed by Employer B (and both employers are subject to the DOT’s drug testing rules). Employer A need only check with Employer B once every six months to obtain the pre-employment exception testing information, assuming Employer A does not want to pre-employment test the driver each time. Employer A must obtain specific written consent from the driver authorizing Employer B to release the information to Employer A.

Suppose a driver has a few days off from the regular employer (Employer B) and is asked to deliver a load for another employer (Employer A). Rather than conduct a pre-employment drug test, Employer A decides to use the exception and obtains the required information from Employer B. Employer A uses the driver for the delivery and decides to use the person again in one month and again after four months. Employer A is not required to obtain the driver’s testing records from Employer B for these trips. However, the driver once more returns to perform another delivery seven months after Employer A first obtained test records from Employer B. Before using the driver for this trip, Employer A must again obtain the required testing information from Employer B.

FMCSA pre-employment alcohol testing

• Pre-employment alcohol testing is optional and must meet specific conditions according to FMCSA requirements.

Federal Motor Carrier Safety Administration (FMCSA) pre-employment alcohol testing is not required, but employers may perform optional testing so long as the following conditions are met (382.301(d)):

• The test must be performed after making a contingent offer of employment or transfer;
• The test must be conducted before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving safety-sensitive functions);
• All employees performing safety-sensitive functions must be treated the same for the purpose of pre-employment alcohol testing;
• The tests must use the DOT alcohol testing procedures (DOT forms, NHTSA-approved equipment, trained technicians, etc.); and
• Covered employees may not begin performing safety-sensitive functions unless driver test results indicate an alcohol concentration of less than 0.04.

Managing the random selection

• The regulations do not dictate which motor carrier department should managed the DOT random selection for testing. The task can is even outsourced by some to a C/TPA.

How a Department of Transportation (DOT) random selection is managed depends on the organization. Some make the role of selecting drivers for random tests a part of the safety or operations department, since the supervisors are familiar with the Federal Motor Carrier Safety Regulations (FMCSRs). For others, the tasks are removed from the front-line supervisors in these departments and given to human resources — to help counter any claims of bias.

For yet others, the random selection process is outsourced to a consortium/third-party administrator (C/TPA). If a service agent performs the administrative functions of the random selection, the motor carrier must still ensure the selection complies with 382.305 of the FMCSRs, which outlines random testing procedures.

Assembling the driver master

• Employers should use the definition of a safety-sensitive position to help determine which drivers to include in the random testing pool.

One of the first steps in setting up the random pool is to determine who should be included. A safety-sensitive position refers to anyone who operates, is in readiness to operate, or occasionally operates a commercial motor vehicle (CMV) that requires a commercial driver’s license (CDL).

Although a CDL would be required to perform a safety-sensitive function, applicability is not based on licensing alone. For instance, an employee who holds a CDL, but does not operate a vehicle requiring one, should not be a part of a DOT testing program. Even if this employee operates a non-CDL CMV, the employee is not subject to any test type within Part 382. Any testing of this individual would have to be a part of an employer’s non-DOT testing program, even if the individual is regulated under other areas of the safety regulations.

Employers commonly make the mistake of omitting eligible drivers from the driver master and including drivers who are not subject to the rules under Part 382.

Don’t forget the following individuals on the employer’s driver master for Department of Transportation (DOT) random selections:

• Owner-operators. If the lease agreement places an owner-operator under a carrier’s authority, the company is responsible for DOT safety compliance for this driver. This includes placement in its DOT random selection, even if the driver’s name is in a consortium or participates in another program under another motor carrier.
• Drivers from a staffing service. Drivers from a staffing service who are operating under a motor carrier’s authority must be included in the carrier’s random pool. However, there is an exception if a staffing service has a DOT testing program, and the driver is assigned to the carrier for fewer than 30 days.
• Seasonal. Even if someone is hired to fill in during a busy stretch, such as summers, holidays, and vacations, the person must still be included on the roster.
• Part-time drivers. Even though a driver may only work one day per week for a secondary employer, and be in a primary employer’s random program, the driver must be included in the secondary employer’s program.
• Occasional drivers with other job titles. Mechanics, dispatchers, managers, and other motor carrier personnel who fill in or move CMVs around must be included on the drive list. This may even include movement around private property, if the yard or lot does not restrict access to the public.

A driver must remain in the random selection pool during a leave of absence, long vacation, or layoff, provided the motor carrier is sure the person will return. A temporary, occasional, or intermittent driver must remain in the random pool for as long as the motor carrier expects that the person might be utilized again. If the motor carrier is sure that the driver will not return, the person’s name may be removed from the list of drivers.

Making the random selections

• Employers are required to test drivers at minimum percentages, but may select a higher rate to ensure the company makes minimum testing rates by the end of the year.
• A scientific method must be used to select names at random.
• Employers can decide how often to test, but the DOT requires a minimum of quarterly selections.

Section 382.305(b) requires carriers to test at minimum percentages. Currently, motor carriers are required to test at least 50 percent of the average number of drivers for drugs and 10 percent of the average number of drivers for alcohol. If the Federal Motor Carrier Safety Administration (FMCSA) revises the number of required annual tests, the revision for the coming year would be printed in the Federal Register by December.

A motor carrier may select a higher rate since the percentages in the regulations are minimums. Many carriers do this to make sure that the company makes the minimum percentages by the end of the calendar year.

For example, a canceled random drug or alcohol test may not be used in the annual total of completed tests. If a motor carrier has canceled or missed tests for a variety of reasons, the employer may elect to test at a higher rate throughout the year to meet the numbers without any adjustments.

Scientific method

The names must be selected using a scientifically valid method, such as a random number table or a computer-based random number generator that is matched to a number associated with the driver (e.g., Social Security Number, employee ID number, driver’s license number, etc.). Each driver must have an equal chance of being selected each time. The person’s name must remain in the driver list each testing cycle even if the person was selected previously during the year. In theory, the same person could be selected each time the motor carrier does a random selection.

Testing periods

Some carriers are left speculating how often the company should test. The decision is left up to the motor carrier. However, Department of Transportation (DOT) reference materials suggest that the agency expects to see at least quarterly selections, even though this requirement does not appear in regulatory text. The company will have to decide what schedule meets its needs. The only requirements are that the year is evenly broken up and the tests are completed within the testing period.

For example, if a motor carrier opts to test monthly, it will select fewer names, but the tests must be completed in shorter period of time. The motor carrier will have to decide whether this is feasible based on scheduling. If an employer instead selects quarterly draws, it will have more time to accomplish the tests, but the number of tests to complete will be greater. Again, the employer will have to look at its operation to determine.

An alternative for employers with relatively few drivers is to join a consortium with testing pools large enough so that drivers are always subject to random testing.

Determining the average number of drivers

Fluctuations in employment can skew random numbers if not calculated correctly. The FMCSA testing regulations state that employers must test at least 50 percent (drug) and 10 percent (alcohol) of the average number of driver positions, not necessarily the total number of drivers that were hired, used, or otherwise employed over the course of the year.

For example, suppose a carrier has an average of 100 driver positions for the year, but (due to turnover) actually used or employed a total of 140 drivers during the year. The company would be expected to make random selections based on its average of 100 driver positions, and would have to test 50 drivers for drugs (not 70) and 10 drivers for alcohol (not 14) by December 31. Some individuals may be tested more than once, and some not at all.

An employer conducting random testing more often than once per month (e.g., daily, weekly, bi-weekly) does not need to compute the total number of covered drivers rate more than on a once per month basis.

Sample quarterly selections

• Regardless of testing cycles, the math formula and concepts used in generating a selection are the same.

Following is an outline for a motor carrier that has opted for a quarterly random testing cycle. The example has a slight fluctuation in driver positions from quarter to quarter.

First quarter

First, determine who should be included in the driver master. Let’s suppose the first quarter’s pull has 250 driver positions. Based on this, you know — if nothing changes — that you must have 125 drug tests and 25 alcohol tests completed (at a minimum) by the end of the year. You divide 125 and 25 by 4 (the number of testing cycles) and round up. So the first quarter selection would include 32 names for drugs and 7 names for alcohol.

Second quarter

All of the first quarter tests should have been completed at this point. Let’s look at what has changed since last quarter:

• Do you need to make up any tests that were either canceled or not completed in the first quarter? You will need to compensate for these tests somewhere. It could be done during this testing cycle.
• Who should be in your pool? Do you need to add or remove names?
• Do you continue to have part-time positions equaling one full-time position? If that has changed, you will need to adjust the count to reflect this.
• Are any drivers on a leave of absence that you expect or know for certain will not return to drive for you? If you anticipate the driver will not drive again for you, you may safely remove the name from the list.

With all of this taken into account, suppose your driver positions spike during the second quarter, and you are now up to 300. You do the same mathematical formula as the first quarter. You take 50 percent of the 300, which is 150, divide by 4 (the number of testing cycles), and round up. You arrive at 38 drug tests. You then take 10 percent of 300, which is 30, divide by 4, and round up to reach 8 as the number of alcohol tests this quarter. If you missed any tests last quarter that you want to make up, you would simply add them to these numbers.

Third quarter

By third quarter, all the second quarter tests should have been completed. You look at the same variables as last quarter when preparing for the pull:

• Tests that were canceled or not completed in the second quarter,
• Adding or removing names, and
• True driver positions versus driver roster.

After reviewing these variables, you should arrive at an accurate number of driver positions for the third quarter. Suppose you had a major shift in numbers to 400 driver positions. You would use the same formula based on 400: 200/4 = 50 drug tests this quarter and 40/4 = 10 alcohol tests this quarter (plus any make-up tests for each test type).

Fourth quarter

Fourth quarter is the selection period in which you need to make sure that all your calculations are correct and that all tests are completed.

If you do not draw names at a higher rate than the minimum and therefore do not have a cushion to work with, it is imperative that the holidays, vacations, and the like do not interfere with sending drivers by the end of the year. It is a little-known fact that all tests must be completed and the MRO results received by the end of the calendar year, or the results do not count for compliance in the year the tests were requested. For example, if the driver was sent December 31 for a fourth quarter test, and the results were not officially sent and dated by the MRO until January 2 of the next year, that test cannot be used for compliance for the year. (Even if the test results were reported out on January 1 which is a legal holiday, it still would not count since it crosses into another calendar year.) It will appear on the lab summary for the following year.

On the other hand, you don’t want to end too early in the cycle either because it is the end of the year. Drivers who know that everyone was sent in early December may engage in prohibited behaviors thinking they may not get caught. It is a delicate balance of not too early and not too late. By fourth quarter, all the third quarter tests need to be completed. You look at the same variables as last quarter when preparing for the pull. After factoring in all these variables, you should arrive at an accurate number of driver positions for the fourth quarter. Let’s suppose you drop back to a lower number due to a slow time of year. Your driver roster has 225 driver positions for fourth quarter.

Before you do your last draw, you need to see where you are for numbers:250 + 300 + 400 + 225 = 1175/4 = 294 (the average number of drivers for the year).

Based on this, you must have 147 drug tests and 30 alcohol tests by the end of the year. So far you have: 32 + 38 + 50 = 120 drug tests at the end of the third quarter and 7 + 8 + 10 = 25 alcohol tests.

To accomplish the minimum 147 drug tests, you need at least 27 more tests. To achieve the minimum 30 alcohol tests, you need at least 5 names. If you do not select over the minimum for this quarter, you would need to make sure that all drivers selected go for the tests and that none are canceled. If you do not have results for all the names selected, you may find yourself conducting an emergency selection close to the end of the year to meet your compliance numbers.

Driver notifications

• Tests must be unannounced. Employers should not give drivers advance notice that the person was selected for a DOT random alcohol or drug test.
• Employers may take one of two approaches to evenly distribute tests throughout the year.

Once a random selection has been made, the motor carrier has until the end of the testing period to send the drivers to the testing site.

Any drivers who should have been sent during the testing period but were not, should not be sent once into the next selection period. The reason the test was not performed should be documented by the motor carrier. For example, a driver may have been on a temporary leave of absence.

Element of surprise

The driver must not have any advance notice of being selected for a Department of Transportation (DOT) random alcohol or drug test. Testing regulations refer to this as being “unannounced.” A common myth is that drivers may be given an hour or two to make it to a collection site. Once a driver is notified of a test, the employee must immediately proceed to the collection site. To do otherwise or to arrive later than reasonable travel time is considered a refusal to be tested, which holds the same consequences as a positive test result. Any notice could give a driver time to adulterate or substitute a result.

Evenly distributed tests

The Federal Motor Carrier Safety Administration (FMCSA) testing rules require that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. But the regulations offer little insight into how a motor carrier is to accomplish this.

Spreading the tests reasonably throughout the year may be taken to mean the testing periods evenly divide the calendar year. But the driver notifications within the testing cycles may take one of two approaches:

• Sending everyone as soon as possible after the random selection. This approach ensures that everyone on the list is tested as soon as practicable, leaving fewer chances of incomplete tests. On the other hand, if a motor carrier notifies selected drivers to go for DOT testing on the same day each testing period (e.g., first of each month, first day of each quarter, etc.), the element of surprise is gone. Even if the day is varied, but the drivers know that the company has a pattern of sending all the drivers on the same day, workers could think it “safe” until the next testing period to engage in drug or alcohol use. Remember, the carrier doesn’t have to select and send the names on the very first day of the testing cycle, but all tests must be completed by the end of it.
• Spreading notifications throughout testing cycle. Some carriers spread the notifications throughout the testing period to fulfill the requirement of spreading notifications reasonably throughout the year. Carriers divide up the names, sending a few one week, a few another week, and so forth until the list is completed by the end of the testing cycle. This satisfies:
  • Evenly spreading the tests throughout the year,
  • Completing the tests by the end of the cycle, and
  • Leaving an element of surprise.
  However, this method may leave the carrier with tests that were not completed if a driver who was slated for notification late in the testing cycle is unexpectedly off work or leaves the company. This approach also could lead to allegations that some test notifications were withheld until later in the testing cycle to protect those that were known to be under the influence, until a time of sobriety. Motor carriers with minimal drivers may not have the option of sending a driver per week when the company only selected one or two names for an entire testing cycle.

Alcohol versus drug test notification

A driver may be sent for a DOT drug test at any time. Use of a drug is a violation whether performing a safety-sensitive function that day or not. However, a driver may only be sent for a DOT alcohol test right before, during, or after performing a safety-sensitive function.

This is important to remember for those drivers who hold other positions at the carrier. For example, a manager, dispatcher, mechanic, or warehouse worker who is in the random selection may be sent for alcohol testing only on those days the person operates or is in readiness to operate a commercial motor vehicle (CMV) requiring a commercial driver’s license.

If not performing a safety-sensitive function, the carrier would need to hold on to the notification until the next time the employee performs a safety-sensitive function. But the motor carrier could send the person for the drug test during any shift since there is no stipulation that it must be tied to performing a safety-sensitive function that day.

Handling drivers who are unavailable for testing

If a driver is unavailable for testing due to an extended leave of absence (medical, personal, vacations, layoff, etc.), the motor carrier should hold on to the name (keeping the person’s selection a secret) and notify the driver upon return, providing the driver returns before the next testing cycle. If the driver does not return before the next testing cycle, the motor carrier would simply document why the test was not performed and compensate for the missed test during a future selection to make its annual percentages.

The FMCSA allows for the use of alternates in cases where the original driver selected is unavailable for testing due to a leave of absence and it is known for certain that the driver will not return before the end of the testing cycle. If there is any chance that the driver who was originally selected will return before the end of the testing period, an alternate should not be used. The alternate must be selected using a scientific method, the same as the general pool.

Use of an alternate must be the exception, not the norm, or the FMCSA may investigate whether a designated employer representative is using alternates to keep from testing specific drivers for business reasons (busy seasons) or as a cover for drivers who the motor carrier suspects would not pass the test if sent.

Using a consortium/third-party administrator (C/TPA)

• Employers utilizing a C/TPA for random tests may calculate the number of drivers to be tested via a combined pool of many motor carriers or individually as an independent pool.

If the employer conducts random testing through a consortium/third-party administrator (C/TPA), the number of drivers to be tested may be calculated for each individual employer (independent pool), or may be based on the total number of subject drivers covered by a consortium (combined pool of many motor carriers). This will mean that a consortium member could have fewer than its required number of random tests conducted if the overall consortium rate equals the required rate. For instance, if Employer A has 20 drivers and the consortium has 500 drivers in the pool covering Employer A, and a 10 percent rate applies for alcohol and 50 percent rate applies for drugs, if Employer A chooses to have the rate based on the consortium, the consortium must conduct at least 50 alcohol tests and 250 drug tests even if Employer A tests fewer than 2 drivers for alcohol and fewer than 10 drivers for drugs.

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 to show that the consortium is testing at the prescribed minimum annual percentage rate for alcohol and/or controlled substances. When contracting with a C/TPA, each employer in the consortium must ensure all testing requirements are met.

Tracking drug and alcohol tests

• A company or its C/TPA must track the results of random drug and alcohol tests.

A motor carrier or its consortium/third-party administrator (C/TPA) should have some means of tracking the results of random drug and alcohol tests. This could be as simple as a spreadsheet or as complicated as a software package.

The motor carrier may be called upon to show when (or if) each selected driver was sent for a random test and the test result. This recordkeeping allows a Federal Motor Carrier Safety Administration (FMCSA) investigator to determine whether:

• The test was completed within the required time frame,
• The test may be counted toward compliance (canceled tests do not), and
• The driver should have been removed from a safety-sensitive function and was not.

Criteria for post-accident testing

• Under certain criteria, employers are required to test each surviving driver for alcohol and drugs following a CMV accident.
• A copy of test results performed by law enforcement may be used instead of performing tests under the employer.

The employer is required to test each surviving driver for alcohol and drugs following an accident involving a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL) when at least one of the following criteria are met:

1. The accident involved a fatality. The driver must be sent for a drug and alcohol test no matter what, even if the CMV driver was never cited.
2. Someone was injured requiring immediate treatment away from the scene AND the driver was issued a moving traffic citation in connection with the accident.
3. One of the vehicles involved in the accident required towing due to disabling damage AND the driver was issued a moving traffic citation in connection with the accident.

When one of these criteria are met, the driver must be tested as soon as practicable.

When a Department of Transportation (DOT) post-accident test meets the criteria for testing, motor carriers should not delay necessary medical attention for an injured driver in order to perform the drug and alcohol tests. 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.

Tests performed by law enforcement

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 as a part of the accident investigation.

The employer can substitute a blood or breath alcohol test and a urine drug test performed by such local officials, using procedures required by jurisdictions. This may be particularly useful if those tests can be administered before the employer can get to the scene. The employer must obtain a copy of the test results.

However, if an employer is unable to obtain a copy of the results and does not perform the post-accident test(s) itself, this is a violation. This type of violation is common when the result is negative and enforcement does not retain a copy of the results.

Time frame for testing

• Under FMCSA regulations, drivers must remain available for alcohol and drug tests for specific periods of time.
• Refusal to test is the same as testing positive.

Alcohol: A driver who is subject to post-accident testing must remain available for testing and refrain from consuming alcohol for up to eight hours after the accident or until the person submits an alcohol test, whichever occurs first. If the driver doesn’t do these things, the employer may consider the individual to have refused to submit to testing, which is the same as testing positive

• If the driver has not submitted to an alcohol test within two hours, the employer should continue attempts to administer the test for up to eight hours and prepare and maintain a record stating the reason a test was not promptly administered.
• If the driver has not submitted to an alcohol test within eight hours, the employer should stop attempts to administer the test and prepare and maintain the record described above.

Drugs: As noted, a driver who is subject to post-accident testing must remain available for drug testing for 32 hours following the crash, or the employer may consider the driver to have refused to submit to testing.

• If a driver has not submitted to a drug test within 32 hours of the accident, the employer must stop attempts to administer the test, and prepare and maintain a record stating the reasons why.

When circumstances change

• Employers must ensure drivers remain available for post-accident alcohol and drug testing in case circumstances change.

Companies need to be aware when circumstances surrounding an accident evolve — in some cases, the criteria can be met after the fact. That’s why the driver must remain available for testing.

For instance, if someone dies because of the crash when the driver was not cited, employers must send the driver for the post-accident tests if the company becomes aware of the fatality:

• Within eight hours of the accident for alcohol testing, and/or
• Within 32 hours for drug testing.

Similarly, if the criterion for an injury requiring immediate treatment away from the scene or towing due to disabling damage to one of the vehicles is met, AND the driver is issued a citation after the crash, the driver must be sent for:

• An alcohol test if employers learn of the citation within eight hours of the crash, and/or
• A drug test if employers learn of the citation within 32 hours of the crash.

Criteria for reasonable suspicion testing

• Supervisors may only request a reasonable suspicion alcohol or drug test based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver.
• A trained supervisor is required to make the observations.
• The behavior must be documented in writing.

In order to request a reasonable suspicion test of a driver, the employer’s decision must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver. In other words, the observations must be happening in front of the employer now (contemporaneous) and must be explained in detail when documenting the event.

The observations may include indications of the chronic and withdrawal effects of controlled substances.

Who may request the test?

Under the Department of Transportation (DOT) drug testing rules (Part 382), a trained supervisor is required to make the observations to require a test. This supervisor must have received 60 minutes of training on alcohol misuse and additional 60 minutes of training on drug use as required in 382.603.

The driver is required to submit to the alcohol and/or drug test when approached by the trained supervisor about the reasonable suspicion. If driver does not comply, it is considered a refusal to test. A refusal to test holds the same consequences as a positive test result, triggering the DOT return-to-duty process.

Documenting the observations

Documentation of the driver’s conduct must be prepared and signed by the supervisor within 24 hours of the observed behavior, or before the results of the alcohol or drug test are released, whichever is earlier.

A five-step approach to reasonable suspicion testing

• Requesting a reasonable suspicion test may not be an easy task for some supervisors.
• Train on a common five-step approach to help in following DOT protocols.

The following five-step approach to requesting a DOT reasonable suspicion test will assist driver-supervisors in feeling more comfortable with requesting the test type. Its structure aids in following DOT procedures and is a good best practice to include in your training curriculum.

Step 1: Observe

The person trained in reasonable suspicion must personally observe the unusual/curious behavior displayed by a driver under the trained person’s supervision. If your company has more than one trained individual, the initial supervisor may ask another trained person to help determine if the symptoms being exhibited clearly indicated prohibited drug and/or alcohol activities.

Step 2: Confirm

The supervisor must confirm that the physical, behavioral, speech, and/or performance indicators being observed are consistent with the signs and symptoms of substance misuse. It does not matter whether the supervisor knows what substance may be involved. The supervisor just needs to believe the behavior or physical signs suggest the driver is under the influence.

Step 3: Confront

This is often the hardest step for many assigned the role of supervisor. For some, it may come down to personality and level of confidence. There is also the uncertainty of how the driver may react. Nevertheless, the supervisor must approach and notify the driver of the suspicion.

This entails describing exactly what was observed and why it prompted the ordering of a drug and/or alcohol test. Always stick to the facts, offering objective terms, and showing concern. For drivers who become defensive, simply listen respectively, but repeat the observations and how you are bound by the federal safety regulations to send the driver for the required DOT test. If the driver talks nonstop, the supervisor needs to regain control of the conversation. Also, the conversation needs to be documented.

Note that some medical emergencies or health problems may resemble symptoms of drug or alcohol use and may result in short health assessment at the site (if offered) to rule out medical issues. The driver must be immediately relieved from safety-sensitive functions at this point.

Step 4: Test

The supervisor must immediately order the appropriate test(s). If you have in-house testing, remember that DOT regulations prohibit the supervisor who requests the test from conducting it. In addition, for off-site tests, it may be a wise best practice — since it is not required — to have the supervisor or another company official accompany the driver to the facility. To allow the driver to drive puts the company at risk if the driver is, in fact, impaired.

Step 5: Document

The supervisor must document the observations leading to the alcohol or drug reasonable suspicion test and sign the report within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier. It is best to do it as soon as possible to keep the details fresh in your memory.

The report should be detailed and in objective terms. Avoid any “I” statements. For example, instead of saying, “I suspect this driver of using alcohol,” document what was observed. It might read, “The driver had difficulty concentrating, seemed uncoordinated, dropped a logbook twice, and fumbled the pen while writing. The driver, on (enter date), was late for delivery without an explanation. The driver’s breath smelled of alcohol as if the driver had been drinking beer.”

Waiting on test results

After the request of a drug test, it may take up to 72 hours or more to receive the official result. Your company policy would dictate what you do with the driver during this interim. Many companies place the employee on temporary suspension pending the results. To allow the driver to return to driving could open the carrier up to serious litigation in the event this driver is in a crash during this time period.

Alcohol-specific requirements

• Some observations and administrative requirements are specific to alcohol testing.

Other aspects of the reasonable suspicion testing requirements are specific to alcohol testing.

Observations

Alcohol testing is authorized only if the observations are made during, just before, or just after the driver performs safety-sensitive functions.

The mere possession of alcohol does not constitute a need for reasonable suspicion testing. Rather, reasonable suspicion testing must be based on observations concerning the driver’s appearance, behavior, speech, or body odor.

Administering the alcohol test

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 must:

• Cease attempts to administer the test, and
• Prepare and maintain the record stating the reasons the test was not administered within eight hours.

If reasonable suspicion is observed — but a reasonable suspicion test has not yet been administered — a driver may 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 against a driver, other than those stated above, based solely on the driver’s behavior and appearance with no test result. The employer may take other action independent of Department of Transportation (DOT) regulatory authority. This may include suspending the employee pending test results.

Handling a driver’s denial of a drug use

• Motor carriers must know how to handle a driver's denial of drug use following a failed test.
• The DOT regulations have a due process built into them for such instances.

A driver who denies drug usage after a positive drug test result is often convincing. Claims that the result “had to have been a mistake at the lab” may seem credible, especially when the driver is a good employee. How should a motor carrier handle such claims?

Due process and the official result

Regardless of a driver’s believability, a motor carrier may not take matters into its own hands and ignore an official DOT drug test result.

Since the medical review officer (MRO) should have already contacted the driver before an official result is provided to the employer, the result should not be a surprise to the driver when the carrier’s designated employer representative (DER) approaches the driver. During the MRO’s verification process, the driver was given an opportunity to offer an explanation (e.g., cite a valid prescription) or refute claims through processing the other half of the collection (split specimen) at a new lab. The driver has only 72 hours once notified by the MRO to request the split specimen test, and if the driver did not request it within that time period, there is no second chance. As the driver, carrier, and MRO await the split specimen results, the motor carrier would have to treat it as a positive until proven otherwise.

Messages left

In some instances, the MRO will be unable to make direct contact with the driver. In such a case, the driver may try to claim that no one spoke to them, so the result is not valid.

During the verification process, the MRO will leave messages and then enlist the DER to contact the driver, directing the driver to call the MRO. If all attempts are exhausted as required under the regulations, the MRO can declare the test positive without ever speaking with the driver.

One more layer of due process is built into the regulations for the driver. If the MRO and DER only left messages, and never spoke with the driver, the MRO must allow the employee to present information within 60 days that serious illness, injury, or other circumstances unavoidably precluded contact with the MRO and/or DER in the times provided.

If the driver is able to provide an acceptable reason, the verification process is reopened, and the MRO is open to discussing a legitimate medical explanation of the confirmed test result.

No discretion

Following a reported positive result, the DER is obligated to remove the driver from any safety-sensitive function and present a list of substance abuse professionals (SAPs) to the driver to start the DOT return-to-duty process. The driver cannot resume safety-sensitive functions until the necessary steps are successfully completed, despite any objections by the driver.

Similarly, a motor carrier cannot take a driver applicant’s word over a former employer that communicates a DOT testing violation. If there is a DOT testing violation in the driver’s past without proof of the return-to-duty steps, the carrier’s hands are tied. The driver is required to complete the necessary steps under the new carrier.

Marijuana use

• While many states now allow the medical or personal recreational use of marijuana, this does not apply to commercial drivers.

When the use of medical marijuana became legal in several states, the Department of Transportation (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC), the DOT agency that oversees the drug and alcohol testing regulations for all DOT agencies, issued a policy statement dated October 22, 2009. In this statement of policy, the ODAPC stated that Medical Review Officers (MROs) could not verify a drug test with positive lab results as “negative” based upon information that a physician prescribed “medical marijuana” to the driver.

With the recent addition of recreational use in some states, the ODAPC has issued another policy statement clarifying that the use of marijuana by commercial drivers in states that allow medical or recreational use is still not allowed. The notice states that the state initiatives will have no bearing on the DOT’s regulated drug testing program. The DOT’s drug and alcohol testing regulations located in 49 CFR Part 40 do not allow the use of Schedule I drugs, including marijuana, for any reason. Currently, marijuana is still listed as a Schedule I drug at the federal level. As such, it cannot be used by anyone covered by the DOT drug and alcohol testing regulations.

A developing situation

Drivers who use cannabidiol (CBD) oil can get caught up in this as well. If the driver uses CBD oil that is not THC-free, the driver may end up testing positive. As the positive lab results are tied to a drug that is not allowed at the federal level, the MRO will have no option but to verify the results as positive under the guidance provided.

An underlying issue here is that the purity and testing methods used for CBD oil are not up to pharmaceutical standards. While the container may say THC-free, the truth is that it may not be. It’s to a carrier’s benefit to ensure its drivers understand that they may still be risking their livelihood by using CBD oil.

But I’m an intrastate or non-CDL driver

The federal drug and alcohol testing regulations apply to all CDL drivers, interstate or intrastate. Therefore, the situation does not change if the driver is an intrastate driver. Also, 392.4 states that the use of any Schedule I controlled substance — which marijuana is — is prohibited by a driver operating a commercial vehicle. This regulation applies to the drivers of all commercial vehicles, CDL and non-CDL. Therefore, while non-CDL drivers are not covered by your DOT drug and alcohol testing program, they cannot use marijuana either.

Buyer beware with CBD oils, DOT says

• Commercial drivers “should exercise caution” when deciding whether to use CBD oil, according to the Department of Transportation (DOT).

Products containing the hemp-derived substance known as cannabidiol have grown in popularity nationwide since 2018 when Congress decided hemp should be treated as an agricultural commodity rather than as marijuana.

However, any hemp product with a concentration of more than 0.3% tetrahydrocannabinol (THC) — the main psychoactive component of marijuana — is treated as a Schedule I substance. This means it cannot legally be prescribed to or used by safety-sensitive employees, including commercial drivers.

THC content is often unknown

The problem with CBD oils is that there is little government oversight or testing to determine just how much THC they contain. Though some states allow use of marijuana and other products with a high THC content, such products remain prohibited under federal law.

Though the DOT tests for the use of marijuana and not hemp, a truck or bus driver who uses any substance with a high THC content will fail a DOT drug test. The consequences will be the same whether the driver purposefully smoked marijuana or inadvertently used a CBD oil containing a high concentration of THC.

Therefore, “buyer beware” with CBD products

The labeling of such products may be misleading, the DOT says, because they could contain higher levels of THC than what the product label states.

The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no federal oversight to ensure that the labels are accurate.

Inform your drivers of the risks

Drivers should be aware of the risks inherent in taking any product containing CBD, even when the label says the THC content is 0.3% or less. As harmless as some products may seem, avoiding all CBD products may be the only way to ensure that a driver won’t inadvertently fail a drug test and need to be taken off the road and reported to the Drug & Alcohol Clearinghouse.

Canadian law legitimizes marijuana use

• As of October 17, 2018, adults in Canada who are at least 18 years of age may recreationally use marijuana (cannabis).
• Those commercial drivers who operate in U.S. Commerce must understand their obligations if they live or travel to Canada and are tempted to use cannabis.

The legalization of marijuana could pose a problem for border crossing motor carriers if drivers misunderstand their obligations under U.S. laws and regulations.

What does the Canadian law permit?

The Cannabis Act allows for the legal:

• Possession (up to 1.05 ounce/30 grams) of dried marijuana in public,
• Sharing (up to 1.05 ounce/30 grams) of dried marijuana with other adults, and
• Purchase of dried or fresh marijuana or cannabis oil:
  • From a provincially-licensed retailer, or
  • Online from a federally-licensed producer.

The Act also permits individuals to:

• Grow up to four marijuana plants in their homes for personal use, provided the plants are from licensed seed or seedlings; and
• Produce marijuana products, such as food and beverage, at home with the stipulation that organic solvents are not used to create concentrated products.

The Canadian government is delaying the sale of cannabis edible products and concentrates until the law has been implemented for one year.

Operating motor vehicles in Canada

At this time, commercial drivers — operating solely in Canada — are not subject to drug screens. Nevertheless, drugged-driving is illegal.

Canadian law enforcement officials realize impaired driving, for the entire motoring public, may be an issue after the Cannabis Act is in effect. In preparation, officers received training to detect drug-impaired driving and to administer standard field sobriety testing roadside. Canadian police may use a series of tests and a blood or urine sample for toxicology to determine sobriety. Officers have been given authority to demand an oral fluid or blood sample if they suspect an offense.

DOT-regulated drivers

The Canadian law may create a point of confusion for commercial drivers who reside in Canada, but operate commercial motor vehicles (CMVs) in the United States.

These drivers must adhere to the Federal Motor Carrier Safety Regulations (FMCSRs). The FMCSRs prohibit the use of any Schedule I drug. Schedule I drugs are substances categorized by the Drug Enforcement Administration (DEA) as having no currently accepted medical use and a high potential for abuse. Marijuana appears on the DEA’s Schedule I.

Drivers who are subject to DOT drug testing are unable to offer an excuse that the substance was legally prescribed or purchased in another country. Medical review officers (MROs) cannot take this explanation into account when determining a drug test result. The MRO is instructed in the DOT testing rules to declare the test positive.

All commercial drivers, not just those with a commercial driver’s license (CDL), operating in U.S. commerce cannot use or possess a Schedule I drug. During a roadside inspection, the driver and carrier will be cited under 392.4, and the driver will be placed out of service for 24 hours. But, the consequences don’t end there.

Both driver types will be disqualified from operating a CMV (383.51 and 391.15). The duration of the disqualification depends on whether the driver has any previous disqualifying convictions, that in combination, increase the penalty.

Border crossing

Anyone transporting marijuana (for personal use) across the U.S.-Canada border could be subject to criminal charges. Even if someone, for example, enters from Canada into Washington State (where marijuana is legal), U.S. Customs will not allow entry since marijuana is illegal under U.S. federal law. Crossing the international border or arriving at a U.S. port of entry with marijuana may result in seizure, fines, and/or arrest, and may impact admissibility.

Final thoughts

The topic of legalized marijuana in Canada, and in some U.S. states, should be explained in a manner that leaves no doubt in the minds of drivers. Use is forbidden of commercial drivers, even when consuming as a “tourist.”

Motor carriers should consider formal training to demonstrate the seriousness of the topic, explaining that marijuana use has far reaching impacts. Drivers could lose their livelihood or face jail time depending on the circumstances. And the motor carrier’s reputation is on the line. Use or possession of marijuana discovered during a roadside inspection will lead to a high Compliance, Safety, Accountability drug and alcohol BASIC score.

Handling dilute urine specimens

• How you handle a dilute urine specimen, as reported by the MRO, depends on details in the official test result.

The result of a DOT urine drug screen came back dilute. What do you do? Your response will depend on a few variables.

Positive dilute

If the test is a positive dilute, it is treated as a positive test result — end of story. The driver is removed from a safety-sensitive function, is given a list of Substance Abuse Professionals (SAPs), and must undergo the DOT return-to-duty process in order to operate a commercial motor vehicle (CMV) again. The violation is reported to the CDL Drug and Alcohol Clearinghouse by the medical review officer (MRO). The test is retained for the minimum five-year period in accordance with 40.333 and 382.401.

Negative dilute with creatinine level of 2mg/dL – 5mg/dL

If a negative dilute has a creatinine level of 2mg/dL to 5mg/dL, the (MRO) will request an immediate recollection under direct observation. The MRO will contact the motor carrier’s designated employer representative (DER) to request this additional test. If the driver refuses this test, it is a refusal to be tested and holds the same consequences as a positive test result. If the driver goes for the retest under direct observation, the results of this test become the result of record.

Negative dilute with creatinine level over 5mg/dL

A negative dilute with a creatinine level over 5mg/dL will not require a retest. The MRO will not contact the carrier requesting action.

According to 40.197, a motor carrier may retest drivers who have a negative dilute result with a creatinine level of over 5mg/dL even though it does not qualify for an MRO-requested recollection. However, the carrier must have this in its company policy. Drivers must know what will be asked of them above and beyond the minimum requirements of the FMCSRs and the consequences. This must take place prior to the driver’s placement in the testing program. This is found in 382.601(a)(1).

In addition, this company policy retest cannot be under direct observation, and the carrier must be consistent and test all drivers under the same circumstances. For example, you could retest based on test type (i.e., all pre-employment tests but no random tests). Even though it is a company policy test, a driver who refuses has just violated DOT drug testing regulations. It holds the same consequences as a positive, even though the test is optional for the carrier’s policy. It is still a DOT test, and the collection site uses a DOT federal drug testing custody and control form.

Retest results

When the retest was directed by the MRO, if it again comes back negative dilute, the test is declared negative.

If the employer-based recollection comes back negative dilute with a creatinine level over 5mg/dL, the driver is not to be retested again. It is deemed a negative result. The process ends here. However, if the test comes back negative dilute with a creatinine level of 2mg/dL - 5mg/dL, the driver will be directed by the MRO to take yet another test immediately under direct observation.

A positive, adulterated, or substituted finding on any retest is the result of record, and the consequences of a drug violation apply.

What causes a dilute specimen?

Many carriers wonder what all the concern is about for dilute specimens. In many cases, a dilute specimen may simply be from drinking excessive water to produce a urine sample. Or it could have more sinister implications: it could be the result of a driver drinking an excessive amount of water to flush out signs of drug use or the result of a drug-masking product.

Watch out for pre-employment refusals

• How a pre-employment refusal to test is defined differs from other test types.

Once a driver-applicant chooses to go forward with a pre-employment drug test and the testing process begins, the applicant must complete the test.

Employers and drivers who are subject to DOT-regulated drug tests must remember that failing to comply with pre-employment testing procedures is considered a test refusal and has serious consequences.

The U.S. Department of Transportation (DOT) recommends that employers explain the testing process to driver-applicants, including the time commitment involved, and explain that once the testing process has begun, the driver must complete the test regardless of other possible obligations or scheduling conflicts.

If an applicant chooses not to go forward with the hiring process and, therefore, chooses not to undergo the drug test, that’s not a refusal.

Once an applicant refuses a test, that fact will have to be reported to the CDL Drug and Alcohol Clearinghouse and disclosed to future DOT-regulated employers who inquire about the applicant.

DOT guidance warns drivers: Don’t leave the collection site too soon

• Drivers who leave a drug test collection site too early could put their careers at risk.

The U.S. Department of Transportation (DOT) has guidance explaining when it’s okay to leave a collection site, and when leaving could result in a determination that the driver refused to take the test.

Under DOT regulations in 49 CFR Part 40, a “refusal” holds the same consequences as a positive test. Drivers who refuse testing must stop driving and undergo a lengthy and costly evaluation and treatment process that puts a black mark on the driver’s record and can make future employment difficult.

Part of the confusion that drivers may face is that collection site personnel are not required to warn drivers about the consequences of leaving the site too early.

Am I done yet?

According to the guidance, drivers are only allowed to leave the collection site after:

• Both the driver and the collector complete the “chain of custody” form,
• The collector gives copy 5 of the form to the driver, and
• The collector secures the samples in plastic bags for shipment to a lab.

At that point, collectors are required to tell drivers that they may leave.

If drivers are unable to provide a urine sample, they will be urged to drink up to 40 ounces of water and asked to wait for up to three hours or until they can provide a specimen. If the driver is unable to produce a specimen within three hours, then the testing process is complete and the driver can leave.

The collector must do the following when continuing with an oral-fluid specimen collection under this section:

• If the employee demonstrates an inability to provide a specimen after 15 minutes of using the collection device, and if the donor states that they could provide a specimen after drinking some fluids, urge the employee to drink (up to 8 ounces) and wait an additional 10 minutes before beginning the next specimen collection (a period of up to one hour must be provided, or until the donor has provided a sufficient oral fluid specimen, whichever occurs first).

• If the employee simply needs more time before attempting to provide an oral-fluid specimen, the employee is not required to drink any fluids during the one-hour wait time. It is not a refusal to test if the employee declines to drink.

• The employee must remain at the collection site, in a monitored area designated by the collector, during the wait period.

If the employee has not provided a sufficient specimen within one hour of the first unsuccessful attempt to provide the specimen, the collector must:

• Discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER; and
• Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. The collector must send or fax these copies to the MRO and DER within 24 hours or the next business day.

The employer’s role

If a driver leaves the collection site too early, it’s not considered a refusal until the employer decides it is. In other words, a driver’s employer plays a key role in deciding whether the driver has refused a drug test, the DOT says.

These are the steps that are supposed to take place after a driver leaves a collection site too early:

• The collector must inform the employer immediately, as required under 40.191(d).
• The employer (and not a third party) has to decide whether the employee refused the test. How is that decision made? According to the DOT, the employer should consider:
  • The information documented on the drug testing form.
  • The advice and information received from the collector and service agents.
  • Any supporting information provided by the employee. For example, in the event of a medical emergency, this may be copies of hospital admission records or EMS or police records.
• The employer must document its decision and the reasoning for the decision.
• The employer must keep copies of the decision — and the information relied on in making the decision — for five years.

Why is documentation important? According to the DOT, if their investigators show up for an audit and discover that the employer didn’t properly document a “refusal” decision, the agency may issue a penalty costing potentially thousands of dollars.

The Part 40 guidance, dated July 2014, is considered “official and authoritative guidance and interpretation” under 40.5. The guidance is associated with 40.73, 40.191, 40.193, 40.333, and 40.355.

How the return-to-duty process and Clearinghouse work together

• The Clearinghouse and return-to-duty processes go hand-in-hand.

The return-to-duty and Clearinghouse processes are two separate processes. However, there are several places where the two overlap.

Here is how the combined process would work, starting at the point the prohibited action (failing a drug or alcohol test, refusing a test, etc.) is discovered by the carrier and the driver is removed from all safety-sensitive functions:

• The carrier must provide the driver with an acceptable substance abuse professional (SAP) referral. Under DOT regulations, the carrier has no more responsibility at this point. As far as the DOT is concerned, the carrier can terminate or suspend the driver, or retain the driver in a non-driving status.
• The correct entity must make the Clearinghouse entry related to the prohibited activity.
  • In the case of a positive drug test or a refusal situation involving the medical review officer (MRO), the MRO must make the entry.
  • If the situation involves a positive alcohol test, an actual knowledge situation, a refusal involving the carrier, or alcohol use following a crash that required testing, the carrier must make the entry.
• Once the Clearinghouse entry has been made, the driver is listed as “prohibited” in the Clearinghouse.
• The first step in returning to driving is the driver completing an evaluation and treatment with an SAP. Once the evaluation and treatment process are completed, the SAP will enter this into the Clearinghouse.
• The driver must then pass a return-to-duty test. The carrier overseeing/accepting the return-to-duty test must enter the negative results into the Clearinghouse.
• Once the driver has completed the SAP process and passed the return-to-duty test, and both of these are entered into the Clearinghouse, the “prohibited” entry will be removed from the driver. The driver can then begin operating CMVs again.
• The driver must then complete all of the required follow-up tests. If the driver switches carriers before the follow-up tests are all complete, the new carrier must pick up where the previous carrier left off and complete the follow-up testing.
• Once the driver completes all follow-up tests required by the SAP, the carrier employing the driver at that time needs to enter that all follow-up tests are completed.

SAP program for CDL drivers

• Several steps must be taken to return to duty if a driver engages in prohibited behavior under Part 382.
• The first step to returning to the performance of safety-sensitive functions is an evaluation with a SAP.

A commercial driver’s license (CDL) driver who failed or refused a DOT drug or alcohol test is viewed as a safety risk by the Federal Motor Carrier Safety Administration (FMCSA). The agency requires that the driver seek evaluation and treatment before being allowed to return to a safety-sensitive position.

What qualifies as a DOT testing violation?

Part 382 (Subpart B) details the scenarios that require the return-to-duty process, including:

• Positive test results,
• Refusals to test, and
• An employer’s actual knowledge of a violation.

Once the designated employer representative (DER) learns of a Department of Transportation (DOT) testing violation, the person must:

• Immediately remove the driver from safety-sensitive functions, and
• Issue the driver a list of substance abuse professionals (SAPs).

The SAP facilitates the return-to-duty process so the employee can return to operating a commercial motor vehicle (CMV).

The following steps must be taken before a driver who has violated the DOT’s drug or alcohol rules can return to the performance of safety-sensitive functions:

• The driver must seek an evaluation from a SAP. Payment of the evaluation is based on management-labor agreements and healthcare benefits and is not required of the employer under the safety regulations.
• The SAP will refer the driver to an appropriate treatment and/or education program.
• The driver must complete the required treatment and/or education and return to the SAP for second evaluation.
• If satisfied that the driver can return to driving, the SAP will issue a report on findings to the DER.
• The SAP report will list any continuing treatment and education, if required, and the quantity of DOT follow-up drug and/or alcohol tests required in specified time frame. The driver will be required to have a minimum of six unannounced follow-up tests under direct observation in the first 12 months following the employee’s return to a safety-sensitive function. The SAP may require follow-up testing up to five years.
• The driver can be sent for the return-to-duty drug (under direct observation) and/or alcohol test once the employer receives the SAP report. The employer cannot send the driver prior to receiving this report. A negative result must be received before the driver can return to a safety-sensitive function.

After the driver returns to a safety-sensitive function, the employer must send the driver for the required number of unannounced follow-ups making sure that the tests do not have any discernible pattern.

Negative return-to-duty test

• After the DER receives the SAP report, drivers are eligible to pass a return-to-duty test.
• A negative test allows the driver to return to performing a safety-sensitive function.

A negative return-to-duty test allows a driver to return to performing a safety-sensitive function after engaging in prohibited behavior under a Department of Transportation (DOT)-drug and alcohol rules. However, as noted earlier, this test cannot be performed until the designated employer representative (DER) receives the of substance abuse professional (SAP) report and the SAP enters the completed steps on the driver’s record in the CDL Drug and Alcohol Clearinghouse.

The return-to-duty alcohol and drug test requirements are summarized below:

• Alcohol test. After engaging in prohibited conduct regarding alcohol misuse, the driver must 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 must undergo a return-to-duty drug test under direct observation before performing a safety-sensitive function. The test result must indicate a verified negative result for drug use.

Follow-up program

• Drivers who are successfully returned to duty are subject to unannounced follow-up testing.
• The SAP determines the number, frequency, and duration of tests.
• A minimum of six tests during the first 12 months is required.

After an employee is successfully returned to duty, the Department of Transportation (DOT) process requires follow-up testing. The employer must ensure that the driver is subject to unannounced follow-up testing following the person’s return to duty. Follow-up drug tests must be conducted under direct observation.

As with the return-to-duty test, the employer may be directed by the substance abuse professional (SAP) to test the driver for both drugs and alcohol.

The number, frequency, and duration of the tests are to be determined by the SAP. The SAP must direct the employer to conduct at least six tests during the first 12 months following the driver’s return to duty. Follow-up testing may be done for up to 60 months based on the SAP’s judgment. The SAP may not establish the actual dates for the prescribed follow-up tests. The decision on specific dates to test is the employer’s.

The SAP may modify the follow-up testing program that was included in the SAP report. However, the SAP must wait to terminate any testing requirement until after the first year of follow-up testing. The employee must take at least six follow-up tests within the first 12 months after returning to the performance of safety-sensitive functions.

Breaks in employment and new employers

A driver cannot escape the consequences of a DOT drug or alcohol violation by switching employers or leaving the industry temporarily and returning. The return-to-duty process does not end until the very last follow-up test is completed. The same principle applies when a driver is laid off and returns to the same employer. If steps remain in the process, it must continue where it left off.

Oral-fluid (saliva) drug test considerations

• Oral-fluid (saliva) drug testing is an option for motor carriers when sending CDL drivers for DOT testing.
• Before motor carriers move forward with the testing method, the should determine if it is a fit for their operation.
• Motor carriers should communicate with service providers as they consider the testing method.

When determining whether oral-fluid drug testing is right for your operation, consider the following factors:

• True cost of testing. It remains to be seen whether oral-fluid tests will cost more or less than urine tests. Ask the following service agents to provide a comparison of their urine and oral-fluid specimen fees:
  • Medical review officer (MRO)
  • Collection site
  • Certified lab
  • Consortium/third-party administrator (C/TPA)
• Detection window. Oral-fluid drug testing:
  • Detects more recent use,
  • Is more advantageous for post-accident and reasonable-suspicion tests,
  • Is not as suitable for detecting chronic/habitual drug use, and
  • Allows for a hybrid model (urine and oral fluid) that takes advantage of both test types.
• Cheating. Oral-fluid drug testing offers fewer opportunities to tamper with the specimen or otherwise cheat on the test. The collection is directly observed each time.
• Privacy. When compared to urine-specimen collections, oral-fluid testing is less intrusive. This could make for less-hesitant drivers taking drug tests.
• Alternate testing method. Oral-fluid testing offers an alternate testing method for recollections.

Finding the right service agents

If oral-fluid drug testing works for your company, you need to make sure your current vendors offer the service or line up new providers.

• Do your collection sites:
  • Offer oral-fluid drug testing?
  • Have trained collectors available?
  • Provide the oral-fluid collection kits?
  • Use a testing kit that is compatible with your certified lab?
• Is your HHS-certified lab certified to process oral-fluid drug tests? If yes, do they process the type of testing kit used by your collection site?
• Does your MRO verify oral-fluid drug tests?
• If your vendors offer oral-fluid drug testing, have fees have been discussed and contracts updated?

Company policy & educational materials

Motor carriers must update their DOT drug testing policy and the educational materials to reflect oral-fluid drug testing.

Items to revise include:

• Standing orders to collection sites. These orders must indicate when to use urine or oral-fluid drug testing (e.g., test types, direct observations), and whether to switch from one to the other as an alternate testing method when permitted.
• Updated drug testing procedures to include oral-fluid testing procedures.

Motor carriers must provide the revised materials to every new driver and those transferring into safety-sensitive positions.

But a common practice is to provide at least an addendum of the changes to existing drivers, so they know what policies and procedures have changed and what to expect at the collection site. It’s a good idea to get a new signed receipt from them. This practice demonstrates safety management controls.

Training employees

Everyone involved with your DOT drug and alcohol testing program should receive some sort of training on the new drug testing method.

• Program managers must know whether urine and/or oral-fluid drug testing is used by the carrier when:
  • Contracting with service providers,
  • Scheduling driver tests,
  • Auditing drug testing records, and
  • Answering driver questions.

The designated employer representative (DER) must know:

• Which test types require urine collections or oral-fluid specimens,
• Whether an alternate testing method is required by the carrier when contacted by the collection site, and
• Specific oral-fluid scenarios that are considered refusals to test.

Drivers must know drug testing procedures for oral-fluid, including:

• Initial collection procedures requiring an oral-cavity inspection,
• When a mouth rinse is required following an oral-cavity inspection,
• The 10-minute waiting period before beginning the specimen collection,
• Collection process and split specimen procedures,
• Dry mouth situations, and
• Refusal to test scenarios.

When considering an optional provision in the safety regulations, such as the oral-fluid drug test, you need to weigh the decision and then make a to-do list if implemented.

Three ways drivers cheat on urine drug tests

• The way in which a driver tries to conceal drug use during a urine specimen collection will fall into one of three categories: adulterant, substitution, or dilution.

Some drivers try to beat the system when sent for a DOT urine drug test.

The methods they use to try to conceal drug use typically fall into one of three categories:

1. Adulterants
2. Substitution
3. Dilution

Fortunately, the DOT testing rules have safeguards built into them to help detect drivers who tamper with their specimen.

1. Drug-masking substances
   A drug test result of adulteration means the urine specimen has been altered. Testing of the urine at the lab shows either a substance that does not occur in human urine or an abnormal concentration of a substance that is found in a person’s urine.
   Typically, adulterated results occur when something has been added to the urine to mask what’s really in the specimen and create a false negative. The substance either interferes with the lab’s screening test and/or destroys the drug metabolite in the sample.
   Drivers who want to hide drug use may use everyday household products (e.g., bleach, iodine) in their tampering attempts, while others go so far as to obtain commercial, yet legal, drug-masking substances.
2. Substituted specimens
   A substitution occurs when the sample provided is something other than a driver’s urine. This may occur if a driver smuggles in something similar in color to human urine such as beverages (e.g., lemonade, soda, sport drinks) and provides it as the sample.
   A substituted specimen may also be powdered urine in packets (just add water) and purchased with the intent of cheating on a drug test in the event the driver is told to report for a test. Other schemes might include using synthetic urine or urine from another person that is smuggled into the collection site. The biggest challenge for someone bringing in a substitute is providing a sample at the correct temperature.
3. Diluted specimens
   A specimen that has a higher-than-average water content is considered dilute. Some specimens are slightly outside of range when a driver drinks a large amount of water to provide a sample. Others consume large quantities of water hoping the drug will not show up. And, finally, a dilute specimen could occur if the driver tried to dilute the specimen through a water source, such as the toilet or sink. This should be less likely if the collection site is following DOT procedures, since the driver should not have access to clear water during the test.
   If a diluted specimen is within is a specific range, the medical review officer will contact the motor carrier and instruct it to send the driver for an immediate recollection under direct observation.

Thwarting attempts at the collection site

DOT drug collection testing procedures should deter or detect attempts to tamper with the urine specimen.

The collector is required to:

• Turn off water and/or tape handles to prevent opening faucets,
• Ensure the water in the toilet is dyed blue,
• Make sure possible adulterants are not present (e.g., soap, disinfectants, cleaning agents),
• Inspect the site to spot any foreign or unauthorized substances, and
• Secure the toilet tank top (e.g., tape) or put bluing in the tank.

The preliminary steps in the collection process also put up another roadblock to tampering. During a test, the driver is instructed to:

• Provide positive identification (no one else can go in the driver’s place);
• Remove outer clothing (coveralls, jacket, coat, hat) that could conceal items or substances used for tampering;
• Leave these garments and any briefcase, purse, or other personal belongings with the collector or in a mutually agreeable location; and
• Empty pockets and display any items in them (potential adulterants).

Together, these steps should prevent a driver from interfering with the urine collection.

At the lab

In addition to testing for the prohibited drugs, a certified lab performs validity testing on urine specimens. Validity testing determines whether the specimen is consistent with normal human urine.

The test will catch:

• Certain adulterants/foreign substances,
• Dilution, and
• Specimen substitution.

A test is reported as invalid when an unidentified adulterant, interfering substance, or abnormal physical characteristic prevents the lab from completing the test or obtaining a valid test result (positive, negative, adulterated, or substituted). An invalid test without a valid medical explanation from the driver provided to the medical review officer results in recollection under direct observation.

Employer’s role in preventing tampered tests

Employers can take measures to prevent attempts at tampering with urine specimens.

For instance, the carrier must ensure a driver immediately proceeds to the collection site for a random test once notified (as required under regulation). The driver is given a certain amount of time to arrive at the collection site, with no time for a detour for a substitution or adulterant. A scheduled appointment, rather than a walk-in or scheduled window of time, ensures that the driver’s arrival is tracked.

When requesting a reasonable suspicion test, it is always wise to accompany the driver as a matter of policy. If the driver is under the influence, it ensures a safe trip to the collection site and prevents the driver from finding something to use in tampering.

Split specimen procedures

A split specimen is a mandatory step in any DOT collection under 49 CFR Part 40. It is the result of dividing one sample into two testing specimens for the lab. This back-up sample is used in the event the primary specimen is unsuitable for testing or the test result comes back as a positive, substituted, or adulterated test result and the driver wishes to contest the results.

Collection process

A collector automatically knows that a DOT collection requires a split specimen. The collector communicates this to the lab by indicating on Step 2 of the Federal Drug Testing Custody and Control Form (CCF) that it is a split specimen collection.

For urine specimens:

• The collector, not the driver, must pour at least 30 mL of urine from the collection container into a specimen bottle, to be used for the primary specimen. The collector then pours at least 15 mL of urine from the collection container into the second specimen bottle to be used as the split specimen.

• Both bottles are secured with lids/caps by the collector, and tamper-evident bottle seals are placed over the bottle caps/lids and down the sides of the bottle. The collector then writes the date on the tamper-evident bottle seals. The driver initials the tamper-evident bottle seals for the purpose of certifying that the bottles contain the specimen that the driver provided. Any excess urine must be discarded, unless used in conjunction with a DOT physical examination. Other than the DOT medical exam, no further testing must be done on the excess urine.

Both specimen bottles are placed in a sealed plastic bag in a shipping container (e.g., courier box) and sent to the lab.

For oral-fluid specimens, the collector follows the manufacturer’s instructions to package the split specimen collections:

• A volume of at least 1 mL of undiluted (neat) oral fluid is collected for the specimen designated as “Bottle A,” and a volume of at least 1 mL of undiluted (neat) oral fluid is collected for the specimen designated as “Bottle B,” or an otherwise sufficient amount of oral fluid is collected to permit an HHS-certified laboratory to analyze the specimen(s).
• In the presence of the employee, the collector places a tamper-evident seal from the CCF over the cap of each specimen container, taking care not to obstruct the expiration date on the collection containers. The collector must record the date of the collection on the tamper-evident seals, after they are affixed to the specimen containers.
• The collector instructs the employee to initial the tamper-evident seals on each specimen container. If the employee declines to do so, the collector must note this in the “Remarks” line of the CCF (Step 2) and complete the collection process.

Both specimen bottles are placed in a sealed plastic bag in a shipping container (e.g., courier box) and sent to the lab.

Protocols at the lab

Incoming specimens are processed by the lab using the protocols outlined in 40.83.

The lab must inspect each specimen and CCF for the following “fatal flaws:”

• There is no CCF;
• In cases where a specimen has been collected, there is no specimen submitted with the CCF;
• There is no printed collector’s name and no collector’s signature;
• Two separate collections are performed using one CCF;
• The specimen ID numbers on the specimen bottle and the CCF do not match;
• The specimen bottle seal is broken or shows evidence of tampering, unless a split specimen can be redesignated;
• There is an insufficient amount of specimen in the primary bottle for analysis, unless the specimens can be redesignated;
• For an oral-fluid collection:
  • The collector used an expired device at the time of collection.
  • If the collector failed to enter the expiration date in Step 4 of the CCF and the laboratory is unable to determine the expiration date by inspecting Bottles A and B.

When the lab finds a specimen meeting the fatal flaw criteria, it must document the findings and stop the testing process. The result is reported in accordance with 40.97(a)(3).

If the primary specimen cannot be tested because of leakage or a broken seal, the split specimen may be redesignated as the primary specimen to be tested. This is only a possibility if the lab believes a sufficient amount of specimen exists in the split specimen to conduct all the appropriate primary laboratory testing.

If the split specimen was inadvertently labeled as the primary specimen, the laboratory may redesignate the bottles as they should be. In the event the lab accidentally opens the split specimen instead of the primary specimen and the primary specimen’s seal remains in tact, the lab may continue processing the split specimen as the primary providing there is enough of a sample to conduct all the appropriate primary laboratory testing. The original primary specimen is then redesignated as the split specimen.

In any of the above cases, the lab would redesignate the two samples by crossing out A (primary) and marking B (split specimen) and vice versa. The laboratory employee will initial and date the changes on the bottles. The laboratory employee must also make a notation on Copy 1 of the CCF, Step 5a, and on any internal chain of custody documents.

If the split specimen is found to be unavailable for testing or appears to be insufficient, the lab must still process the primary specimen without providing the Medical Review Officer (MRO) details regarding the unavailable split specimen. In the event the MRO instructs the lab to forward the split specimen in these circumstances, the lab would then provide the MRO with the details for the unavailability. How the MRO handles a request for a split specimen analysis in this situation is covered in the MRO results subheading below.

Notification of due process

A Medical Review Officer (MRO) will contact a driver in the event of a positive, adulterated, or substituted result, informing the driver of the right to test the split specimen to prove an error in testing. The driver has 72 hours after being told of this right to request the split specimen.

The MRO will make all attempts to contact the driver so that the option is made available. The MRO will make three reasonable efforts within 24 hours (documenting them).

If the driver cannot be contacted, the MRO will contact the designated employer representative (DER) to get in touch with the driver on the MRO’s behalf. The DER is not told the reason why the MRO needs to speak with the driver personally. If the DER’s documented attempts (three reasonable efforts in another 24-hour period) do not result in a contact, the MRO reports the results as positive.

If the driver does not contact the MRO within 72 hours of being told the verified result, the primary specimen’s test result remains official. There MRO may review an explanation why the driver did not get back to the MRO within the 72 hours. This could include a serious illness, injury, or inability to contact the MRO, lack of actual notice of a verified positive test, or other circumstances unavoidably preventing the driver from contacting the MRO. If the MRO feels the explanation is legitimate, the MRO will direct the analysis of the split specimen be performed. If the there is no legitimate explanation why the driver did not contact the MRO within the 72 hours, then a split specimen does not have to be tested.

If the driver requests an analysis of the split specimen within 72 hours of having been informed of a verified positive result, the MRO directs the laboratory, in writing, to ship the split specimen to another DHHS-certified laboratory for analysis. The specimen must be sent regardless of payment for the testing. The employer may recoup the cost, but cannot refuse the employee of the right to test the split specimen based on payment. Even if the employer never gets reimbursed, the test must be done.

The reporting of the verified positive result is not delayed pending the split-specimen analysis. The employer would still be forced to remove the driver from the safety-sensitive function in accordance with 382.501 once notified of the verified positive on the primary specimen.

Testing of the split specimen

The laboratory that originally received both the primary and split specimens must forward the following items to the second laboratory:

• The split specimen in its original specimen bottle, with the seal intact;
• A copy of the MRO’s written request; and
• A copy of Copy 1 of the CCF, which identifies the drug(s)/ metabolite(s) or the validity criteria to be tested for.

The lab must not send to the second laboratory any information about the identity of the employee. Inadvertent disclosure does not, however, cause a fatal flaw. The regulations do not prescribe who gets to decide which HHS-certified laboratory is used to test the split specimen. That decision is left to the parties involved.

Based on the primary specimen result, the split specimen is processed in the following way:

• Drug(s) and drug metabolite(s) — The lab testing the split specimen must test for the drug(s)/drug metabolite(s) detected in the primary specimen. This split specimen, however, is not tested within the cutoff concentration in 40.85 and 40.91, as applicable. If the test does not reconfirm the presence of the drug(s)/drug metabolite(s) that were reported in the primary specimen, the lab must conduct validity tests. This will aid in determining if there is a reason why the retest failed to confirm the presence of the drug(s) found originally in the primary specimen. The lab is required to follow the validity testing procedures set forth in 40.87 or 40.93 . If the test or the validity testing fails to confirm the primary specimen results, the lab has the option of sending out the specimen or an aliquot of it to yet another HHS-certified laboratory for another reconfirmation test.
• Adulteration — Laboratories testing split specimens for an adulterant must use the same criteria as the primary specimen in accordance with 40.89 or 40.93, as applicable. The result of the primary specimen is reconfirmed if the split specimen meets these criteria. If the test fails to reconfirm the adulterant result reported in the primary specimen, the lab may send the specimen or an aliquot of it for testing at another HHS-certified laboratory that has the capability to conduct another reconfirmation test.
• Substitution — Laboratories testing split specimens for substitution must use the same criteria as the primary specimen in accordance with 40.88. The result of the primary specimen is reconfirmed if the split specimen meets these criteria.

Lab results

A laboratory responsible for testing the split specimen must report split specimen test results by checking the “Reconfirmed” box or the “Failed to Reconfirm” box (Step 5(b)) on Copy 1 of the CCF and by providing clarifying remarks using current HHS Mandatory Guidelines requirements. The laboratory-certifying scientist signs and dates the CCF.

The lab must report the split specimen results directly to the MRO at the MRO’s place of business. The results will not be reported through a DER or another service agent. The lab must fax, courier, mail, or electronically transmit a legible image or copy of the fully-completed Copy 1 of the CCF, which has been signed by the certifying scientist. It must transmit the laboratory result to the MRO immediately, preferably on the same day or next business day as the result is signed and released.

MRO results

The MRO will receive split specimen results that fall into five categories. The MRO must take the following action, as appropriate, when a laboratory reports split specimen results.

Category 1

The laboratory reconfirmed one or more of the primary specimen results. The MRO must report to DER and the employee the result(s) that was/were reconfirmed.

• In the case of a reconfirmed positive test(s) for drug(s) or drug metabolite(s), the positive is the final result.
• In the case of a reconfirmed adulterated or substituted result, the refusal to test is the final result.
• In the case of a combination positive and refusal to test results, the final result is both positive and refusal to test.

Category 2

The laboratory failed to reconfirm all of the primary specimen results because, as appropriate:

• Drug(s)/drug metabolite(s) were not detected;
• Adulteration criteria were not met; and/or
• Substitution criteria were not met.

The MRO must report to the DER and the employee that the test must be canceled. The MRO must inform the DOT of the failure to reconfirm using the format in Appendix F to Part 40.

In a case where the split failed to reconfirm because the substitution criteria were not met and the split specimen creatinine concentration was equal to or greater than 2mg/dL but less than or equal to 5mg/dL, the MRO must, in addition to informing the DOT of the failure to reconfirm, direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.

In a case where the split failed to reconfirm and the primary specimen’s result was also invalid, the MRO will direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.

Category 3

The laboratory failed to reconfirm all of the primary specimen results, and also reported that the split specimen was invalid, adulterated, and/or substituted.

In the case where the laboratory failed to reconfirm all of the primary specimen results and the split was reported as invalid, the MRO must:

• Report to the DER and the employee that the test must be canceled and the reason for the cancellation.
• Direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.
• Inform the DOT of the failure to reconfirm using the format in Appendix F to Part 40.

In the case where the laboratory failed to reconfirm any of the primary specimen results, and the split was reported as adulterated and/or substituted, the MRO must:

• Contact the employee and inform the employee that the laboratory has determined that the split specimen is adulterated and/or substituted, as appropriate.
• Follow the procedures of 40.145 to determine if there is a legitimate medical explanation for the laboratory finding of adulteration and/or substitution, as appropriate.

If the MRO determines that there is a legitimate medical explanation for the adulterated and/or substituted test result, the MRO reports to the DER and the employee that the test must be canceled and informs ODAPC of the failure to reconfirm using the format in Appendix F to Part 40.

If the MRO determines that there is not a legitimate medical explanation for the adulterated and/or substituted test result, the MRO must take the following steps:

• Report the test to the DER and the employee as a verified refusal to test. Inform the employee that the employee has 72 hours to request a test of the primary specimen to determine if the adulterant found in the split specimen is also present in the primary specimen and/or to determine if the primary specimen meets appropriate substitution criteria.
• Except when the request is for a test of the primary specimen and is being made to the laboratory that tested the primary specimen, follow the procedures of 40.153, 40.171, 40.173, 40.179, 40.181, and 40.185, as appropriate.

The laboratory that tests the primary specimen to reconfirm the presence of the adulterant found in the split specimen and/or to determine that the primary specimen meets appropriate substitution criteria, it reports the result to the MRO on a photocopy (faxed, mailed, scanned, couriered) of Copy 1 of the CCF.

If the test of the primary specimen reconfirms the adulteration and/or substitution finding of the split specimen, the MRO must report the result as a refusal to test.

If the test of the primary specimen fails to reconfirm the adulteration and/or substitution finding of the split specimen, the MRO must cancel the test.

Category 4

The laboratory failed to reconfirm one or more — but not all of the primary specimen results — and also reported that the split specimen was invalid, adulterated, and/or substituted. The MRO, in the case where the laboratory reconfirmed one or more of the primary specimen result(s), must follow procedures in paragraph 40.187(a) (Category A) and:

• Report that the split was also reported as being invalid, adulterated, and/or substituted (as appropriate).
• Inform the DER to take action only on the reconfirmed result(s).

Category 5

The split specimen was not available for testing or there was no laboratory available to test the specimen. The MRO must:

• Report to the DER and the employee that the test must be canceled and the reason for the cancellation;
• Direct the DER to ensure the immediate recollection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection; and
• Notify the DOT of the failure to reconfirm using the format in Appendix F to Part 40.

MRO Recordkeeping

For all split specimen results, the MRO must:

• Sign and date (Step 7) of Copy 2 of the CCF.
• Send a legible copy of Copy 2 of the CCF (or a signed and dated letter, see 40.163) to the employer and transmit the document as provided in 40.167 and keep a copy for the MRO’s records.

Correcting errors on a drug/alcohol testing form

• Minor errors on testing forms often don't cancel a test, but some are serious enough to require corrections.

Do you know what to do if you see an error on a DOT drug or alcohol testing form? Minor errors on testing forms can and do occur. They usually do not invalidate the test, but they often do need to be corrected.

For example:

• The driver’s license number may have transposed digits,
• The collector may have forgotten to record the urine temperature, or
• An old version of the testing form may have been used.

Don’t ignore the problem

As an employer, you have certain responsibilities when it comes to these types of errors; you cannot just ignore them, even if they weren’t your fault. If they turn up during an audit, you and/or your service providers can be penalized.

You are responsible for the actions of your service providers. You can ask for evidence that they are properly trained and consider switching to a new provider if a pattern of errors emerges.

The DOT testing regulations in 49 CFR Part 40 include specific instructions for correcting errors, both for drug testing and alcohol testing. The following is a summary of those requirements as they relate to the Drug Testing Custody and Control Form (CCF) and Alcohol Testing Form (ATF).

Affidavit required

For the errors listed below, you must notify the person responsible for providing the missing information. That person must then provide a signed written affidavit on the same day. The affidavit must explain the error and the steps taken to prevent future violations.

• The collector’s or technician’s signature is missing. (If the collector or technician is unavailable, a supervisor can supply the affidavit in this case.)
• The driver’s signature is missing, and the reason is not noted on the “Remarks” line.
• The collector failed to check the urine specimen temperature and the “Remarks” line doesn’t say anything about the temperature being out of range.
• Any other required information is missing.

Keep the affidavit with the CCF or ATF and make sure the form is marked in a way that makes it obvious that the flaw was corrected. Forms should never be “corrected” in a way that makes it appear that the error did not occur. One proper way to make a correction is to use a pen to circle the error, then indicate nearby what the correct information should be. Initialing the correction is also helpful, according to the DOT.

Wrong form

If a non-federal or expired form was used, notify the collector. The collector or a supervisor must provide a signed statement, on the same day, which:

• Affirms that the incorrect form contains all the right DOT-required information;
• Affirms that the test was conducted at a certified lab following Part 40 procedures;
• States that the incorrect form was used inadvertently, or as the only means of conducting the test; and
• Lists the steps taken to prevent future errors.

Keep the statement with the testing form and make sure the form is marked in a way that makes it obvious that the statement was provided.

No required actions

These errors don’t require any corrective actions:

• There’s a minor administrative mistake, such as a missing middle initial on a name or no identification of the DOT agency.
• The specific name of the courier is missing or wrong on the CCF.
• There’s personal identifying information on the CCF, such as if the driver signs the top ply (Copy 1).

Though correction of these problems is not required, it’s a good idea to bring them to the attention of the collector.

‘Fatal’ CCF flaws

Some CCF-related errors are not fixable and result in the medical review officer needing to cancel the test. These include:

• There is no CCF at all,
• The printed and signed name of the collector is missing,
• Two separate collections are recorded on one CCF, and
• The specimen ID number on the CCF does not match the number on the specimen bottle.

Lab summaries

• Reviewing your carrier's lab summaries can help identify errors or areas to address.

Motor carriers that are subject to DOT drug and alcohol testing must manage the records associated with the administration of their programs. One such document is the semi-annual statistical summary. Rather than simply “file away” these reports that are received from your contracted laboratories, they might offer an opportunity to perform a self-audit.

Recordkeeping

The semi-annual reports are sent to you or your consortium/third-party administrator (C/TPA) twice a year. If you have performed fewer than five tests in the six months, you will not receive a report.

If your C/TPA receives them first, you need to ensure they are forwarded to your company. Note that the laboratory should not send the C/TPA a large report that combines tests for everyone who they serve. The reports need to be employer-based.

Invaluable data

This six-month window of information offers the motor carrier an opportunity to reconcile its report against internal tracking.

For instance, how do the number of completed tests compare against:

• Your statistical reporting,
• Billing records from collection sites and Medical Review Officers (MROs), and
• Actual chains of custody and MRO results you have received?

Let’s take a few examples:

Audit issue: The lab summary shows fewer drug tests performed than the number of drivers selected.

Possible action: Find the reason for the discrepancy and correct any problems to keep on track to reach your random test rate.

Audit issue: The lab report shows fewer tests performed than what your collection site billed you.

Possible action: Contact your collection site for clarification to ensure you were not charged for additional tests in error.

Audit issue: The lab shows one test positive for PCP, but the MRO did not report a verified positive test for PCP to you.

Possible action: Dialog with your MRO on the issue. Possible reasons may include a test downgraded to a negative, or the test was canceled by the MRO due to a fatal flaw or a correctable flaw that was not fixed.

Audit issue: The report shows 25 canceled tests due to fatal flaws. Your records do not show any cancellations because they were not communicated to your company.

Possible action: Verify the reasons for the cancellations with your MRO. If you discover it was due to collection site errors, contact your collection site about “error correction training” for the collector(s) in question. Remember, you are responsible for the actions of your service providers, and if it remains a problem or you are not confident in their services, you may need to consider finding another collection site.

Audit issue: The six-month report shows a number of negative dilute specimens. The DOT requires recollections under direct observation for low-level negative based on the MRO’s direction. Your carrier also has a policy of retesting all other negative dilutes (not under direct observation). You see no record of the recollections in the reports.

Possible action: Make sure your designated employer representative (DER) and MRO understand and apply your retest policy. Ask your MRO which tests fall within the scope of DOT-required mandatory retest under direct observation. Any employees who tested within the range and were not retested should be sent immediately, even though it is after the fact.

MIS data collection

If a motor carrier is notified to do so by the FMCSA, it is required to prepare and maintain an annual calendar-year summary of its alcohol and drug testing program. Many carriers track their test results using a spreadsheet or software, so completion of the DOT Drug and Alcohol Testing Management Information System (MIS) Data Collection Form is simply a matter of transferring their tracking of calendar year data to the required FMCSA document.

Who must complete the MIS data collection form?

Each year in January, the FMCSA will notify a select number of employers to submit a calendar-year summary of alcohol and drug test results on a form provided by the agency. The form is used for all administrations within the Department of Transportation, including the FMCSA.

The form asks for some basic information about the company and its DOT testing program for the previous calendar year, including:

• The number of covered employees;
• Total number of drug and alcohol test results;
• The number of drug test results which were negative, positive, adulterated, substituted, canceled, or a refusal; and
• The number of alcohol test results which had a result of:
  • Below 0.02,
  • 0.02 through 0.039,
  • 0.04 or higher,
  • Canceled, or
  • Refusal to test.

If notified, you must submit the required summary to the FMCSA location specified. It must be received by March 15 of that year. The report must be accurate and must be typed, except for the signature of the certifying official. Forms submitted to the FMCSA when not requested will be discarded.

The FMCSA allows for electronic submission of MIS data.

A consortium or third-party administrator (C/TPA) may prepare annual calendar-year summaries on your behalf, but you must sign and submit the reports and you remain responsible for its accuracy.

Auditing drug/alcohol testing forms

If you operate a DOT-regulated drug and alcohol testing program for your drivers, do you audit the testing forms?

It’s not unheard of for collection sites to make errors on the Federal Drug Testing Custody and Control Form (CCF) or the DOT Alcohol Testing Form (ATF). If you simply file the forms as soon as you receive them, you may miss an important mistake — one that could come back to haunt you in the event of an audit or litigation.

Auditing the completed forms when you receive them is an easy way to check up on your collection sites and make sure they’re completing the forms properly (performing more in-depth collection-site audits is recommended, but the forms are a good place to start.) Errors could be a “red flag” that your service providers — including collection site, lab, and/or medical review officer — may be having compliance problems, and that it’s time for a closer look at their handling of the testing process.

The following are some important things to watch for when reviewing a DOT drug or alcohol testing form:

• Did you receive the proper copy of the form, marked “Employer Copy”?
• Check the date and time listed on the form, showing when the employee reported for testing. Are they what you expected? Was there an unusual delay between when you notified the driver of the need to go for the test and the time the driver arrived at the testing site?
• Is the driver identified on the forms the same driver you sent?
• Did the collector and the driver both sign the CCF or ATF as needed?

For alcohol tests:

• Was an alcohol test ordered at all? If so, was it completed?
• If a drug test was also ordered, was the alcohol test conducted first? (If both tests are required, the alcohol test should be completed before the urine collection process begins, whenever possible.) You can check this by reviewing the time printed or written on the ATF versus the time written by the collector in Step 4 of the CCF.
• Note the time on the ATF — it should either be on a printout affixed to the form, printed directly onto the form, or written in by hand. Is the time accurate, as far as you can tell?
• Is the date accurate?
• What was the final screening test result? If it was 0.02 or greater, then a confirmation test should have been performed.
• If required, was an air-blank performed? An air-blank calibrates or “zeroes out” an evidential breath testing device (EBT) before it’s used for a confirmation test. The collector has to conduct an air-blank and show the reading to the driver. If the reading is 0.00, the test can proceed. If the reading is greater than 0.00 on two attempts, the EBT has to be taken out of service.
• Is the description, name, or serial number of the device used clearly indicated?

For drug tests:

• Was a drug test ordered at all? If so, was it completed?
• Did the collection site use the correct federal form? Sometimes collection sites mistakenly use non-federal forms.
• Does the CCF contain accurate information in Step 1, Parts A and B?
• Is the “FMCSA” box checked in Step 1, Part D?
• Can you read the handwriting of the collector?
• Did the collector press hard enough when writing, so that the carbon images are clearly visible and legible?
• For urine specimens, Check Step 2 to make sure the temperature was in range and that a split specimen was collected and checked.
• If a urine collection was “Observed,” make sure that an explanation is clearly written in the Remarks section. Unless it’s a return-to-duty or follow-up test, it’s a good business practice for you to confirm (by telephone or email), why the collection was directly observed, making certain that it was justified and that it did actually occur.
• If “Observed” is NOT indicated and it was a return-to-duty or follow-up test, verify that the test was in fact not observed — perhaps the box wasn’t checked by mistake. However, if the urine sample wasn’t collected under direct observation, the driver must immediately have another collection under direct observation.
• Are there “carbon shadows” visible on the bottom of the CCF? Specifically, shadows indicate that the donor initialed the labels while they were on the CCF and not after the collector applied them to each of the two specimen bottles.
• If the driver was unable to provide a specimen (“shy bladder”), was it written up in the Remarks in Step 2? Does your protocol with the collection site require additional documentation to record shy bladders?
• Do the dates in Steps 4 and 5 match? They should.

If you find errors, it may be a good time to converse with the collection site — or even schedule a visit or request additional documentation — to verify that they’re complying with the regulations. It’s your responsibility as a motor carrier to ensure that your service providers are following the rules.

Reporting to the Clearinghouse

• Employers, consortium/third-party administrators, medical review officers, and substance abuse professionals are responsible for reporting specific information to the Clearinghouse.
• Only violations occurring after January 6, 2020, must be reported.

Motor carriers are not solely responsible for reporting all drug and alcohol violations to the Clearinghouse. Reporting is a shared responsibility among employers (and/or the company’s service agents), medical review officers (MROs), and substance abuse professionals (SAPs). Note that violations occurring before January 6, 2020, must NOT be reported to the Clearinghouse.

Only violations occurring under a motor carrier’s Part 382 program qualify to be reported to the Clearinghouse. Violations occurring under another Department of Transportation (DOT) agency are not provided to the database. In addition, non-DOT test results cannot be reported to the Clearinghouse.

Motor carriers are responsible for reporting the following test results or violations by the close of the third business day following the date on which the information was obtained:

• Alcohol confirmation test results of 0.04 or greater;
• Refusals to take an alcohol test (40.261);
• Refusals to take a drug test where the MRO is not involved in making the determination, as listed below (i.e., employers must report refusals to test as described in 40.191(a)(1) through (4), (a)(6), (a)(8) through (11), or (d)(1) (but in the case of a refusal under (a)(11), employers only need to report admissions made to the specimen collector));
• Actual knowledge (as defined in 382.107) that a driver has used alcohol on duty, including a traffic citation for driving under the influence (DUI)/driving while intoxicated (DWI) in a commercial vehicle that requires a commercial driver’s license (CDL), used alcohol within four hours of coming on duty, used alcohol prior to post-accident testing, or has used a controlled substance;
• Negative return-to-duty test results*; and
• Completion of follow-up testing.*

*Only reported if the violation that led to the need for the test occurred on or after January 6, 2020.

• Any verified positive, adulterated, or substituted drug test;
• A driver’s failure to provide a sufficent specimen for a test and a medical evaluation reveals no valid explanation for the failure;
• A driver’s failure to undergo a medical exam or evaluation as directed by the MRO as part of the verification process (unless it involved a pre-employment test conducted without a contingent offer of employment);
• A driver’s admission to the MRO that the driver adulterated or substituted a specimen; and
• Other refusals that the MRO might note in Step 6 on the drug testing form.

SAPs must report the following, if the underlying violation occurred on or after January 6, 2020:

• The date of the SAP’s initial assessment of the driver (must be reported by the end of the first business day after the assessment); and
• The driver’s successful completion of the SAP’s return-to-duty plan, indicating that the driver is ready for a return-to-duty test (must be reported by the end of the business day on which the driver was determined to have completed the return-to-duty process).

Motor carriers must educate drivers about the information that will be reported into the Clearinghouse (382.601(b)(12)).

In most cases, a driver’s Clearinghouse record will not be “cleared” until the Federal Motor Carrier Safety Administration (FMCSA) is notified that the driver has completed treatment and has passed a return-to-duty test and all follow-up tests, and five years have passed since the date of the violation.

What NOT to report to the Clearinghouse

• Employers must be careful not to report inaccurate information to the Clearinghouse.
• A violation reported in error to the Clearinghouse will put the driver in a prohibited status.

Being listed as “prohibited” in the Clearinghouse is a serious matter for any commercial driver. That’s why it’s critical for employers to know when they should — and should NOT — report a violation to the Clearinghouse. The violations that employers must report to the Clearinghouse are listed in 49 CFR 382.705.

Don’t report these

The following types of infractions may have consequences of their own, but they should NOT result in a violation report to the Drug & Alcohol Clearinghouse:

• A DUI/DWI citation involving a personal vehicle or a commercial vehicle that does not require a CDL. This is not “actual knowledge” of a violation as defined in 382.107 because it did not involve a CDL-class vehicle.
• The results of any non-FMCSA-required test, such as a company-required test, a test on a CDL holder who does not drive, or a test under another DOT agency. The Clearinghouse only tracks violations that occur under FMCSA rules in Part 382.
• A driver’s self-admission of a violation that falls under your company’s voluntary self-admission policy, if you have one that complies with 382.121, Employee admission of alcohol and controlled substances use.
• Failure to show up for a pre-employment test, which is not a “refusal to test” as defined in 382.107.
• The results of any test performed prior to January 6, 2020, before the Clearinghouse began operations.
• Any return-to-duty or follow-up test result (received at any time) based on a violation that occurred prior to January 6, 2020.

Use caution when entering violations

In addition to the above, use caution when entering violations in the Clearinghouse, because entering wrong information can have long-lasting consequences.

For example, suppose you mistakenly try to enter a positive drug test result that your MRO has already reported. You don’t see an option to select a positive drug test (since employers cannot report those) so you pick alcohol instead. This will result in a separate violation in the system, unnecessarily penalizing the driver for a violation that never happened.

Remedying CDL problems in the Clearinghouse

• When the Drug & Alcohol Clearinghouse launched, many users ran into some technical glitches.
• Though many bugs have been fixed, some problems remain, and they may require action from your drivers.

Many of the problems in requesting queries, entering data, or creating a driver's personal Clearinghouse account revolve around the commercial driver’s license (CDL) number, since that’s how drivers are identified and tied to their Clearinghouse records.

The license number that a driver, motor carrier, or medical review officer enters into the system must be an exact match with the number on file at the driver licensing agency where the driver is licensed.

If there’s a mismatch, the system will not work as intended. For example, you may enter a driver’s CDL number to conduct a new-hire query, only to discover later that the driver never received notice of your request. This can cause both delays and frustration.

There are steps you or your drivers can take to fix the problem, depending on the reason for the mismatch.

The CDL number being entered incorrectly

This is the most common problem. If the CDL number has special characters such as spaces, dashes, or leading zeros, first try entering the CDL number without these characters. If that doesn’t work, try adding them. There is no uniform standard among the states, unfortunately, so it may take several tries to get the right match.

A broken link (pointer) in the national driver database

A broken “pointer” can result when a driver obtains a new license in a different state and that state’s licensing agency fails to connect (point) the driver’s new license to the existing driving record. A pointer can remain broken for years until someone discovers it.

With a broken pointer, even if a driver’s license number is entered properly in the Clearinghouse, the FMCSA will be unable to make the connection to the driver’s record. The FMCSA does not get involved in fixing broken pointers; it’s left up to the states. If a driver calls their state driver licensing agency to figure out what’s wrong, however, the state may not see any obvious problem and blame it on the Clearinghouse.

A broken pointer can be tough to diagnose and correct. If you or a driver suspects a broken pointer, the driver should be persistent in contacting the driver licensing agency and making sure the broken pointer gets fixed.

Drivers should first ‘verify’ their CDLs

The best place to start diagnosing a problem is in the driver’s personal Clearinghouse account, making sure the Clearinghouse has “verified” the driver’s CDL. If it hasn’t, there will be a message on the driver’s online dashboard, possibly indicating a broken pointer or a problem with the way the CDL information was entered.

Once the CDL is verified, the driver’s employer(s) — when running a query — should enter the CDL information exactly the same way the driver did.

If you confirm that a driver’s CDL has been verified but the driver still doesn’t see a pending consent request from your company, try canceling the request and submitting a new one, entering the CDL information exactly as the driver did.

Employer queries of the Clearinghouse

• Employers must purchase Clearinghouse records for drivers before employment and annually.

Employers must purchase each commercial driver’s license (CDL) employee’s Clearinghouse record (if any) at the following times:

• Pre-employment (full) query — A company cannot employ a driver to perform a safety-sensitive function without first doing a full pre-employment query of the Clearinghouse to find out if the driver’s status is “prohibited,” indicating the driver committed a violation. If prohibited — or if the driver refuses to grant consent for the query — the driver cannot be used to perform a safety-sensitive function as defined in 382.107 (including driving and many other activities). A driver will remain prohibited until successfully completing the referral, evaluation, treatment, and return-to-duty testing process described in Part 40 Subpart O. After employers request a pre-employment query, the driver-applicant will be notified and asked to log in to the Clearinghouse website to grant consent for the query, and the request will then be processed.
• Annual (limited) query — Employers must query the Clearinghouse at least once per year for each CDL driver who is subject to Federal Motor Carrier Safety Administration (FMCSA)-mandated drug and alcohol testing. If a Clearinghouse record exists and it indicates that the driver has not completed the return-to-duty process, the driver can no longer perform safety-sensitive functions. The annual query may begin with a “limited” query that reveals whether there is information in the Clearinghouse for that driver. Before performing a limited query, employers must get the driver’s written or electronic consent.
  • If a limited query indicates that the Clearinghouse has no information about the driver, no further action is required.
  • If the Clearinghouse does contain information about the driver, the company must follow up with a “full” query within 24 hours.

As of March 8, 2023, the FMCSA will notify a motor carrier via email if a driver they’ve queried in the Drug & Alcohol Clearinghouse has new information (such as an update in return-to-duty status, a removed violation, or a new violation) added to their Clearinghouse record within 12 months of the last query (whether that was a pre-employment or annual query). This closes a loophole that resulted in employers waiting for up to a year (between queries) to learn of a change in a driver’s Clearinghouse record.

Drivers will be:

• Notified when information about them is added to, revised, or removed from the Clearinghouse (this notification will be made via U.S. Mail unless the driver has registered and provided an email address to the Clearinghouse);
• Able to obtain free copies of individual records; and
• Able to petition the FMCSA to remove inaccurate data from the Clearinghouse.

Consent for queries

• Limited queries require written consent forms provided by the motor carrier and signed by the driver.
• Full queries require consent by the driver through the driver’s personal Clearinghouse account.

The regulations do not specify the contents or format of the written consent needed for a limited query. Such a consent form:

• Must include a statement signed by the driver that the person agrees to the release of specific information (i.e., confirmation that a Clearinghouse record exists) to a specific person or organization at a particular time (such as annually, or more frequently if desired);
• Can be obtained annually or can be effective for more than one year — even the length of employment — so employers may wish to have drivers sign such a consent form at the time of hire;
• Can be a standalone document or may be included on an application or other form;
• May be paper or electronic (390.32); and
• Must be kept on file until three years after the date of the last query authorized by the consent.

Consent for a full query is done within the Clearinghouse portal. A full query can only be accessed by the motor carrier if the driver has a Clearinghouse account. When a motor carrier requests a full query, the driver must log into a personal Clearinghouse account and give consent to the report.

This is the part in the process where slowdowns can occur. Drivers are encouraged to register for the Clearinghouse so they can respond to requests for consent quickly. If drivers are not registered, requests and responses must be handled via regular mail using the address on the driver’s license, which will delay the process.

Use of Clearinghouse information by enforcement

• SDLAs have access to the Clearinghouse and will use the information to disqualify a driver from holding a CDL or CLP.
• Roadside inspection personnel can see a prohibited status in the Clearinghouse to place a driver out of service.
• Traffic enforcement will be able to see a downgraded license on the driving record that is the result of an unresolved violation in the Clearinghouse.

The FMCSA requires state driver’s licensing agencies (SDLAs) to access the Clearinghouse data to deny commercial driver’s license (CDL) and commercial learner’s permit (CLP) issuance, renewal, upgrade, or transfer for any driver that has an unresolved violation in the Drug and Alcohol Clearinghouse. Additionally, existing CDL and CLP holders will have their licenses downgraded while they are in prohibited status in the Clearinghouse. Drivers can have their prohibited status removed by completing the return-to-duty process, which includes being evaluated by a substance abuse professional, completing required education and/or treatment, and having a negative return-to-duty drug and/or alcohol test.

Previously, it was up to employers to ensure that drivers with drug or alcohol violations weren’t driving CDL CMVs, but FMCSA has found through their auditing and investigation processes that some employers were choosing to ignore violations and allow prohibited drivers to continue driving. States are required to comply by November 18, 2024.

Access by roadside enforcement

Traffic enforcement and roadside inspectors, although accessing information in different ways, have the same objective — to remove drivers with an unresolved violation under Part 382 from operating a commercial motor vehicle.

State-based MCSAP (Motor Carrier Safety Assistance Program) enforcement personnel have electronic access to a CDL or CLP driver’s Clearinghouse status during a roadside intervention. A driver found to be in a prohibited status is placed out of service.

A non-MCSAP traffic enforcement officer will be able see whether the driver can lawfully operate a commercial motor vehicle due to a downgraded CDL or CLP on the driver’s motor vehicle record. The downgrade would be the result of an unresolved testing violation. This information will be available to traffic enforcement once a driver’s SDLA has processes in place for the downgrade. This downgrading process must be in place no later than November 18, 2024.