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Copyright 2023 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
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When does an owner-operator have to be in my DOT testing program?
An owner-operator is considered your “employee” for DOT purposes — for all DOT safety compliance — when leased and operating under your authority. The DOT does not look at the issue of pay (i.e., IRS definition of employee) or ownership (i.e., name on the title) of the vehicle. Leased drivers must be in as many DOT random pools as companies they are employed by. That means that any company that allows the owner-operator to work under its authority will need to include the driver in its pool.
May a driver use a prescribed drug?
Is it permissible to add additional drugs to the DOT panel?
No. The DOT drug screen must test only for the substances listed in the regulations in the prescribed thresholds. Testing outside of the scope of this drug panel does not qualify as a DOT drug test.
Is there an official DOT list of clinics offering drug and alcohol tests?
No. Unlike the list of labs assembled by the U.S. Department of Health and Human Services, there is no official certification for facilities offering DOT tests. Because of this, employers who are subject to Parts 382 and 40 will have to contact facilities and networks directly and inquire if they offer DOT testing.
The regulations require all agreements and arrangements (written or unwritten) between employers and collection sites to perform DOT drug and alcohol testing to include provisions requiring compliance with DOT drug and alcohol testing regulations, which includes meeting the site requirements, trained staff, approved equipment, and required forms.
If a service provider fails to follow Part 40 and/or Part 382 requirements, is the employer in violation?
Yes. An employer cannot use the defense that its vendor made the mistake and therefore it is not responsible for a violation. According to 40.11(b), the employer is responsible for all actions of its officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations. Section 40.15(c) states the employer remains responsible for compliance with all applicable requirements of Part 40 and other DOT drug and alcohol testing regulations (Part 382), even when it uses a service agent. If the employer violates the DOT drug and alcohol testing regulations because a service agent has not provided services as the rules require, a DOT agency can subject the employer to sanctions.
The employer’s good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency due to noncompliance that resulted from the service agent’s conduct.
When does an owner-operator have to be in my DOT testing program?
An owner-operator is considered your “employee” for DOT purposes — for all DOT safety compliance — when leased and operating under your authority. The DOT does not look at the issue of pay (i.e., IRS definition of employee) or ownership (i.e., name on the title) of the vehicle. Leased drivers must be in as many DOT random pools as companies they are employed by. That means that any company that allows the owner-operator to work under its authority will need to include the driver in its pool.
What if the driver never leaves your property? Is the driver subject to DOT testing?
A motor carrier will need to look at its operation to see if its parking lot or yard meets the definition of "highway" in 390.5: “any road, street, or way, whether on public or private property, open to public travel.” “Open to public travel” in general terms means that the road is open to the general public for use without restrictive gates and prohibitive signs. Based on this, a mechanic, dispatcher, or supervisor who just moves a CMV out of a garage to a parking space could possibly be subject to DOT testing.
Can drivers who are subject to Part 382 use CBD oil?
The Federal Motor Safety Regulations (FMCSRs) don’t specifically prohibit CBD oil, however, there is no guarantee that cannabidiol (CBD) oil, even if derived from hemp, will result in a negative DOT drug test result. The concentration of tetrahydrocannabinol (THC) in the CBD oil and how much the individual is using the oil both factor into a potential drug testing violation. The presence of THC is strictly prohibited based on DOT testing rules (40.85), medical qualifications (391.41), and general operating rules (392.4). An MRO will not accept CBD oil as a valid medical explanation for a positive test for THC. Additionally, enforcement may view CBD oil in a commercial motor vehicle as possession since the officer is unable to determine the concentration of THC.
Why does the Federal Drug Testing Custody and Control Form list the donor’s social security number and employee identification number as acceptable identification numbers if drivers must be identified by their commercial driver’s license number?
The Federal Motor Carrier Safety Administration (FMCSA) requires drivers to be identified by their commercial driver’s license (CDL) number because the Drug and Alcohol Clearinghouse uses the CDL number to associate drivers with positive drug or alcohol test results that are entered into the Clearinghouse. The Federal Drug Testing Custody and Control Form (CCF) is used by agencies other than the FMCSA, however, e.g., the Federal Aviation Administration (FAA), whose employees do not have a CDL number and are not subject to the Drug and Alcohol Clearinghouse and can therefore be identified by social security number (SSN) or employee identification number (EIN).
What number should be used to identify a driver on a Federal Drug Testing Custody and Control Form (CCF) or the Alcohol Testing Form (ATF)?
Collectors and alcohol technicians can only use the driver’s commercial driver’s license (CDL) number on the CCF and ATF. Testing facilities may no longer use a driver’s social security number (SSN) or employee identification number (EIN). FMCSA is requiring that the CDL number be used instead of the SSN or EIN so that the number is associated with positive drug or alcohol test results that are reported to the Drug and Alcohol Clearinghouse.
Does an employer have to terminate the employment of a driver who commits a Part 382 drug or alcohol violation?
The Federal Motor Carrier Safety Regulations (FMCSRs) do not address whether drivers who commit Part 382 violations should be terminated. This decision should be based on state and federal employment laws and the employer’s drug and alcohol policy.
Can employers test drivers covered by Part 382 drug and alcohol regulations conduct drug and alcohol tests at their discretion?
No. The Federal Motor Carrier Safety Regulations (FMCSRs) are very specific about when a driver is subject to drug and/or alcohol testing while working for a motor carrier. These situations include:
- If the driver’s name is drawn for random drug or alcohol testing as part of a Part 382 random testing program,
- After an accident that meets the Part 382 criteria for post-accident testing,
- When a trained supervisor suspects a driver is under the influence of drugs or alcohol and sends the driver for a reasonable suspicion test, and
- Return-to-duty and follow-up testing that is prescribed by the substance abuse professional (SAP) who has evaluated a driver after a Part 382 drug or alcohol violation.
Should employers include all employees who hold a CDL in their DOT drug and alcohol testing program?
No, only those individuals who drive a CDL CMV for the company should be included in the company’s DOT drug and alcohol testing program. Employees who happen to hold a CDL but are not using the CDL in their jobs are not in a safety-sensitive position and are not subject to Part 382. If, however, the individual is a backup CDL driver who may be called upon occasionally or intermittently to drive a CDL CMV should be included in the company’s DOT drug and alcohol testing program.
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['Drug and Alcohol Testing - DOT']
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