Requirements While Not Performing Safety-Sensitive Functions: A CDL driver is selected for a random drug test and the employer directs the driver to be tested when he was (off duty) not performing a safety-sensitive function. The collection site instructs the driver to submit to a random drug test and a random alcohol test. The driver tests positive for the random alcohol test. Is the driver required to undergo the return-to-duty process before performing safety sensitive duties again as a result of the positive alcohol test?

No, 49 CFR 382.305(m) states that “A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.” As such, the test was improper. The driver does not have to complete the return-to-duty process. The employer must cancel the improper alcohol test, documenting for the record the circumstances resulting in the cancellation.

Last Updated : May 20, 2015

There is no Federal prohibition resulting from a driver testing positive on a non-DOT drug test. 49 CFR §40.13 requires that DOT and non-DOT testing be completely separate.

Last Updated : May 20, 2015

Return-to–duty/Pre-employment Testing: What type of DOT tests must an employer provide in order to hire a driver who has completed the referral and evaluation process with a SAP, but still needs a return-to-duty test before the driver may perform a safety-sensitive function?

An employer may give the driver a single DOT drug test that will meet both the requirements of §382.301(pre-employment test) and §382.309 return-to-duty test (RTD).  [§382.309, Question 1]. But the single test must be characterized as a DOT return-to-duty and conducted under direct observation.. In other words, a DOT RTD will suffice for a DOT pre-employment test, but a DOT pre-employment test will not suffice for a DOT RTD test

Last Updated : May 20, 2015

No. Once a SAP has evaluated a driver’s condition, neither the driver nor the employer can seek a new evaluation to try and receive another recommendation. If the employee has obtained a second SAP evaluation, the employer may not rely on it for any purposes. [§40.295]

Last Updated : May 20, 2015

Shy Bladder: A CDL driver could not provide enough urine for the random test within thee hours of his/her first unsuccessful attempt. The collector stopped the test and reported to the designated employer representative (DER) that it was not completed. What happens in this situation?

In this situation, referred to as a “shy bladder,”  the driver has up to five days to obtain an evaluation from a licensed physician that contains a medical reason for the failure to provide a urine sample that would be acceptable to the medical review officer (MRO).  The MRO must receive a copy of the evaluation and related medical records, and will decide whether the test is cancelled or declared a refusal.  The regulations governing this process, including individual responsibilities are found in 49 CFR §40.193 and §40.195.

Last Updated : May 20, 2015
 

Employers are required to provide employees who have engaged in prohibited conduct, as addressed in 49 CFR Part 382, Subpart B, with contact information for SAPs and counseling and treatment programs. [§382.605, Question 4]

Last Updated : May 20, 2015

Yes.  Unless you are an owner-operator employing yourself as the only driver [§382.603, Question 3], you must ensure that all supervisors that are designated to supervise CDL drivers undergo a one-time 2-hour training requirement.  The training, at minimum, must include at least 60 minutes of alcohol misuse training and 60 minutes of controlled substance use training, which enables supervisors to recognize signs of drug and alcohol use that support §382.307 reasonable suspicion testing.

Last Updated : May 20, 2015

The Custody and Control Form for a pre-employment DOT test mistakenly indicated that the test was conducted pursuant to the Federal Railroad Administration’s (FRA) authority. The form should have indicated that the employee was a CDL-driver, being tested pursuant to FMCSA authority. Does this procedural error require the employee to have another pre-employment drug/alcohol test?

No, the driver does not need to be retested.  So long as the driver was tested in accordance with Part 40 and the test did not contain any flaws addressed in §40.201 or §40.203, or the error does not have a significant adverse effect on the rights of the employee to have a fair and accurate test, a new test is not needed. [§40.209(b)(1)]

Last Updated : May 20, 2015

All drivers that operate a commercial motor vehicle, as defined in 49 CFR §382.107, which requires a driver holding a commercial driver’s license, are subject to the Drug and Alcohol testing requirements in 49 CFR Parts 40 and 382. (See 49 CFR §383.3). This includes, but is not limited to: full time, regularly-employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors. See federal register notice on leased drivers.

Last Updated : July 9, 2019