Staffing services, Enforcement Guidance on DOT drug and alcohol testing

Scope

Staffing services that provide drivers are considered the “employer” for DOT drug and alcohol testing when the driver is assigned to a motor carrier for a period of less than 30 consecutive days.

Regulatory citations

• 49 CFR 382.305 — Random testing

Key definitions

• Commercial motor vehicle (CMV): A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle
  • Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
  • Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or
  • Is designed to transport 16 or more passengers, including the driver; or
  • Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations.
• Driver: Any person who operates any commercial motor vehicle.
• Employer: Any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it, but such term does not include the United States, any state, any political subdivision of a state, or an agency established under a compact between states approved by the Congress of the United States.

Summary of requirements

Driver assignments. According to the FMCSA notice, a staffing service is the “employer” for DOT drug and alcohol testing when the driver is assigned to a motor carrier for a period of less than 30 consecutive days. The staffing service may create its own USDOT testing program to include these casual, intermittent, and occasional drivers.

If a leased driver operates or is expected to operate for a motor carrier for a period of more than 30 consecutive days, the driver should be included in the motor carrier’s random testing pool, and the motor carrier should assume full responsibility for the driver under its DOT testing program.

The driver staffing service, according to the guidance, may remove the driver from its DOT random testing pool or allow the driver to remain in it based on its reasonable expectation on whether the driver will or will not return to its employment as a temporary leased driver.

Using the exception. When a casual driver is assigned to a motor carrier by a staffing service and the exception is being utilized, the motor carrier must ensure the driver is participating in a compliant DOT drug and alcohol testing program.

The motor carrier is responsible for ensuring the staffing service complies with all the testing rules. In other words, the motor carrier is making the third party’s testing program its own by way of contract, consortium agreement, or other arrangement. As a result, the staffing services records must be made available to the motor carrier in the event it is investigated by the FMCSA.

Not using the exception. If the staffing service does not conduct required testing, the motor carrier must treat the temporary driver as it would any other new hire in a safety-sensitive position, including the DOT pre-employment drug screen, issuance of educational materials and company policy, required background inquiries, and placement in the random pool.