Q1. What is “actual knowledge” as used in Part 382, Subpart B? 

A1. “Actual knowledge” is defined in 382.107 and means that an employer has knowledge that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use, except as provided in 382.121.  Direct observation as used in this definition means “observation of alcohol or controlled substances use” while a driver is subject to performing a safety-sensitive function, “and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under 382.307.”

Q2. A driver admits to a company official they have used a controlled substance as defined in the National Institute of Drug Abuse (NIDA-5) for a 5 panel DOT drug test, however,  the self-admission does not meet the criteria under 49 CFR § §382.121 ( a) (1-4)382.121 (a) (1-4) or the employer does not have a qualified voluntary self-identification program under 49 CFR §382.121 (b). Does this trigger a DOT Evaluation and the return-to-duty process?

A2. Yes. If an employee admission does not fall under 49 CFR 382.121 , then by default the admission provides the employer with “actual knowledge” of drug or alcohol use, which triggers a DOT SAP return-to-duty process under Part 382, Subpart B.

Q3. A driver self admits to a company official they are abusing alcohol off-duty only. Is this a violation of part 382, and does this trigger a DOT SAP evaluation?

A3. No. If the driver admits only off-duty alcohol abuse, the motor carrier may require the driver to undergo a medical evaluation pursuant to  391.45 ( c ). If the medical examiner (ME) determines the driver has a current diagnosis of alcoholism, the ME will disqualify the driver, under 49 CFR  391.41(b)(13). In order for the driver to be considered for re-certification, the driver will have to successfully complete an employee assistance program (EAP) and demonstrate they do not have a current diagnosis of alcoholism. This determination should be made by a qualified medical examiner.