Drug testing

Scope

Testing drivers for the presence of controlled substances is required by Part 382 of the Federal Motor Carrier Safety Regulations. The regulations require pre-employment, post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing.

Regulatory citations

• 49 CFR Part 382 — Controlled substances and alcohol use and testing
• 49 CFR Part 40 — Procedures for Transportation Workplace Drug and Alcohol Testing Programs

Key definitions

• Drugs (controlled substances): The drugs for which tests are required under this part and DOT agency regulations are marijuana, cocaine, amphetamines, phencyclidine (PCP), and 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; leased drivers and independent owner-operator contractors.
• Employer: A person or entity employing one or more employees (including an individual who is self-employed) subject to DOT agency regulations requiring compliance with Part 40. The term includes an employer’s officers, representatives, and management personnel. Service agents are not employers for the purposes of Part 40.
• Laboratory: Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT under 49 CFR Part 40.
• Medical review officer (MRO): A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.
• Safety-sensitive function: Drivers are considered to be performing a safety-sensitive function during any period in which they are actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
  Safety-sensitive functions shall include:
  • All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
  • All time inspecting equipment as required by 392.7 and 392.8 or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
  • All time spent at the driving controls of a commercial motor vehicle in operation;
  • All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of 393.76 of this sub-chapter);
  • All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
  • All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
• Substance abuse professional (SAP): A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

Summary of requirements

Drivers of commercial motor vehicles (CMVs) that require a commercial driver’s license (CDL) to operate must be included in their carrier’s Part 382 Drug Testing Program. There are six types of DOT drug tests:

1. Pre-employment test. Unless the criteria identified in 382.301 are met, before a driver performs a safety sensitive function, including driving, the carrier must receive a negative drug test result. Pre-employment tests are also used for drivers who were removed from the random pool for more than 30 days and for drivers who are transferring from a non-CDL driving position into a CDL driving position for the same carrier.
2. Post-accident test. Post-accident testing is required for an accident meeting the criteria prescribed in 382.303 while operating a CMV requiring a CDL. In post-accident testing, the use of police drug tests may be used in lieu of a motor carrier test where police will make results available.
3. Random testing. Carriers are required to conduct random drug testing of CDL CMV drivers. The minimum annual testing rate for random drug testing is set by the Federal Motor Carrier Safety Administration (FMCSA) and is currently 50 percent.
4. Reasonable suspicion testing. Supervisors must be trained to recognize the signs of drug use and send drivers who exhibit these signs to undergo reasonable suspicion testing.
5. Return-to-duty testing. Drivers who have committed a Part 382 drug violation are required complete the return-to-duty process and must have a negative return-to-duty test result before they are permitted to return to performing safety-sensitive functions.
6. Follow-up testing. Once drivers who committed a Part 382 drug violation have completed the return-to-duty process and return to performing safety-sensitive functions, they must complete follow-up testing as prescribed by the substance abuse professional (SAP) for up to five years.

Testing procedures. Procedures for administering drug tests are outlined in Part 40, beginning at 40.31. The procedures require laboratory analysis of the specimen for the presence of drugs. Only laboratories certified by the Department of Health and Human Services (HHS) may be used. An updated listing of the certified laboratories is published by the agency every month.

Consequences of a drug violation. Drivers who fail a drug test, or violate the prohibitions against using drugs, must be removed from safety-sensitive functions. The employer must advise the driver of resources available in resolving a drug abuse problem. The violation is reported to the CDL Drug and Alcohol Clearinghouse by the medical review officer (MRO), or by the employer in certain instances (refusal to test, actual knowledge). The driver's Clearinghouse record will show as “prohibited.”

The driver must be evaluated by a SAP who will determine what assistance the driver needs. Before a driver is sent for a return-to-duty drug test, the SAP must:

• Report a completed, successful evaluation and treatment program to the Clearinghouse, and
• Send the employer a report indicating a follow-up testing plan.

In order to return to duty,:

• The driver must pass a return-to-duty drug test performed under direct observation, and
• The motor carrier must report the negative test to the Clearinghouse to remove the “prohibited” status.

Note that the driver's “prohibited ” status results in a downgraded CDL or CLP. It remains downgraded until the record indicates a “not prohibited.” The status will not change until the Clearinghouse receives reports of a completed SAP program and negative return-to-duty test. The driving privileges must be reinstated before returning to safety-sensitive functions.

The driver must also submit to at least six unannounced follow-up tests performed under direct observation in the first 12 months following return to duty.