Policy Development and Communication
The FMCSA regulations require that you develop a written policy on controlled substances use and alcohol misuse in the workplace and that the policy be provided to every driver. You may use this chapter as a checklist of the items that should be included in your policy.
Section 1. Policy Development
As you begin developing your policy, you may want to involve other members of your organization. This could include, but is not limited to, your company officials, union representatives, medical review officers (MROs), substance abuse professionals (SAPs), breath alcohol technicians, screening test technicians, and legal representatives.
A final review of your draft policy should be conducted by your legal representatives, your labor relations personnel, and your executives. The purpose of the legal review is to ensure that there are no conflicts between the provisions of the policy and the requirements of the FMCSA and other Federal, State, provincial, or local laws such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), or the Drug-Free Workplace Act (DFWA).
The labor relations/company official review should identify and resolve any conflicts between the policy and existing labor agreements or personnel policies. It should be noted that requirements of the FMCSA regulations are not subject to bargaining.
Section 2. Required Policy Statement
The controlled substances and alcohol regulations require that you have a policy statement that incorporates your position and information on virtually all aspects of your controlled substances use and alcohol misuse program (382.601).
Policy Components Required by the Controlled Substances and Alcohol Rule (382.601)
The policy statement should begin with a short statement describing the objective or purpose of the policy.
Categories of Drivers Subject to Testing
All drivers/employees who operate CMVs must be subject to testing as defined in Chapter 2, "Regulatory Overview" (382.103).
Participation as a Requirement of Employment
The policy must indicate that participation in the employer's controlled substances and alcohol testing program is a requirement of each driver/employee, and therefore, is a condition of employment or use.
Required Hours of Compliance
The policy must clearly identify the time periods during which drivers must be in compliance with the alcohol rule. A driver must not consume alcohol while on duty (382.205), four hours prior to on duty time (382.207), and up to eight hours following an accident or until the employee undergoes a post-accident test, whichever occurs first (382.209).
A driver shall not report for duty or remain on duty that requires performing safety-sensitive functions when the driver uses any controlled substance, except when the use is at the instruction of a physician who has advised the driver that the substance does not adversely affect the ability to safely operate a CMV (382.213).
Employers must describe driver behavior that is prohibited by the FMCSA rules.
Circumstances for Testing
The FMCSA requires that controlled substances and alcohol tests be given to drivers in specific circumstances: pre-employment (for controlled substances only), reasonable suspicion, post-accident, random, return-to-duty, and follow-up (see Chapter 5, "Types of Testing," for a description of these tests).
Your policy must define these circumstances in sufficient detail to inform the drivers what circumstances will trigger these tests (Part 382, subpart C).
Behavior That Constitutes a Refusal to Submit to a Test
The policy must describe the kinds of behavior that constitute a refusal to submit to a test. Such behavior includes refusal to take the test (382.211); inability to provide sufficient quantities of breath, saliva, or urine to be tested without a valid medical explanation; tampering with or attempting to adulterate the specimen; interfering with the collection procedure; not immediately reporting to the collection site; failing to remain at the collection site until the collection process is complete; having a test result reported by an MRO as adulterated or substituted; or leaving the scene of an accident without a valid reason before the tests have been conducted. See the definition of "Refuse to Submit" in 382.107.
Consequences for Drivers With an Alcohol Concentration of 0.02 or Greater but Less Than 0.04
The policy must state that any driver who has an alcohol concentration of 0.02 or greater but less than 0.04 shall not perform or continue to perform safety-sensitive functions until 24 hours following the administration of the test (382.505).
No other action can be taken under FMCSA or DOT authority against the driver based solely on test results showing an alcohol concentration of less than 0.04. This does not prohibit the employer with authority independent of FMCSA regulations from taking any action otherwise consistent with the law (382.505(b)).
No action shall be taken under FMCSA or DOT authority against the driver based solely on test results showing an alcohol concentration of less than 0.02. Alcohol concentration results of less than 0.02 are considered negative for the purposes of this employer testing program. No employer may penalize a driver based on a test result of less than 0.02 alcohol concentration conducted under Federal requirements.
The policy must describe the procedures (49 CFR part 40) for how:
- Controlled substances tests will be performed, including split specimen collection and analysis for controlled substances
- Alcohol tests will be performed, including whether breath or saliva screening tests will be performed
- Privacy of the employee will be protected
- Integrity of the test process will be maintained
- Test results will be attributed to the correct driver.
- Post-accident testing will be conducted including instructions to the driver.
The policy must indicate that the employer will strictly adhere to all standards of confidentiality and assure all drivers that testing records and results will be released only to those authorized by the FMCSA rules to receive such information (382.405).
Consequences of the Use of Controlled Substances and the Misuse of Alcohol
The policy must contain the consequences for a driver who refuses to submit to a test, has a verified positive controlled substances test result, or has an alcohol concentration of 0.04 or greater. This includes the mandatory requirement that a driver be removed immediately from his or her safety sensitive function (382.501). The policy must also state that any driver who has a verified positive controlled substances test result, has an alcohol concentration of 0.04 or greater, or refuses to submit to a test must also be evaluated by a substance abuse professional, even if your policy requires the driver to be terminated.
Any further action (e.g., termination) taken against the driver is up to the employer, but must be described in detail in the policy. It should also be mentioned in the policy that these actions are employer-mandated, not FMCSA-mandated.
Identity of Contact Person
You must designate a person to answer questions about your controlled substances use and alcohol misuse program, with the telephone number and office location clearly indicated.
Effects of Alcohol and Controlled Substances
The policy must state where information can be obtained on the effects of alcohol misuse and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol problem; and available methods of intervening when an alcohol and/or controlled substance problem is suspected. You must provide this information to your drivers.
More details on this can be found in Chapter 4, "Education and Training."
Any Additional Employer Provisions
If you wish to exceed the requirements of the Federal regulations, these provisions should be included in the policy. It must be made clear that these provisions are those of the employer and not required by the FMCSA.
This includes information concerning who will pay for the testing. The FMCSA regulations do not specify who pays for testing drivers. However, an employer must ensure all testing is conducted as required by part 40, including split-sample analysis when requested by the driver. An employer and MRO shall not delay testing because of issues over who will pay for a test (especially a split-sample analysis). The testing must be conducted and payment or reimbursement settled later.
Section 3. Policy Communication
Once you have developed and adopted a policy on controlled substances use and alcohol misuse, you must make sure that your drivers are aware of the policy and the effect it will
have on them. You must provide materials that explain the regulations, policy, and corresponding procedures to all drivers and
representatives of employee organizations (382.601). You must require drivers to sign a certificate of receipt in accordance with 382.601(d).
You may wish to exceed this requirement by undertaking a more active approach to communicating the policy by using all the mechanisms available at your organization to inform and educate employees. These could include:
- Orientation sessions,
- Written materials,
- Audio/video tapes,
- Interactive forums,
- Informational material displays, or
- Ongoing dialogue among drivers, labor representatives, first-line supervisors, and company officials.
The requirement to notify drivers about your policy should not be confused with the requirement to formally train supervisors in selected aspects of your controlled substances use and alcohol misuse program. See Chapter 4, "Education and Training," for an explanation of your training obligations.
Suggestions for Communicating the Policy
As soon as the policy is adopted, initial policy communication sessions should be scheduled to inform the drivers of the requirements of the Federal regulations and the manner in which the employer will implement these regulations. This initial communication should be in a session of adequate length to assure the employees understand the policy and have all questions answered. A company official should be present and express support for the policy. However, if a session cannot be scheduled, you could distribute the policy to all employees, explaining some of the major points of the program and the implementation schedule. In the initial communication you should:
- Provide each driver with a copy of the required policy and explain that formal training on the details of the program will follow (if you intend to provide optional driver training). Summarize the policy.
- Provide a summary that explains the requirements set forth in the regulations.
- Have each driver sign the required certificate of receipt form acknowledging receipt of a copy of the policy and the regulation summary. An example form is provided in the appendix at the end of this section.
- Provide an overview of the employer's action plan for implementing the controlled substances use and alcohol misuse policy and discuss the major milestones.
- Provide a schedule, consistent with your action plan, of the formal driver training sessions.
You may wish to include other items in your initial policy orientation sessions. One suggestion is to provide an open forum where top management, company officials, union officials, laboratory representatives, a substance abuse professional, and possibly the MRO can answer questions regarding any aspect of the policy, its implications, testing procedures, or available employee assistance. Be sure that persons answering questions about the policy and regulations are completely knowledgeable concerning all aspects of the program. Generalities, vague answers, opinions, and guesses should be avoided. If a specific issue has not been resolved or is not addressed by the policy, say so. If you do not know the answer to a question, assure the audience that you will get an answer as soon as possible, then make sure to follow up.
Company officials should demonstrate their personal commitment to and support of the program by communicating the policy to drivers, setting an example, and ensuring fair and impartial implementation. Assurances of strict confidentiality and respect for driver privacy and dignity are key elements in promoting the program. Company officials should have been thoroughly briefed on the program and must be knowledgeable about the effects of controlled substances use and alcohol misuse, the various rehabilitation options available (if any), and the prescribed disciplinary actions the company has elected to implement. A positive attitude toward achieving a controlled substances and alcohol-free work site should be communicated at every opportunity and will do much to achieve a successful program.
Requirements of the FMCSA-mandated controlled substances use and alcohol misuse program are not subject to bargaining.
However, it is advantageous to involve the union or driver leadership in the implementation process by providing periodic briefings on the status of program formulation. The briefings should stress the health and safety benefits to employers,
drivers, and the public. Your driver representatives may actively support the program and may offer to become actively involved in it or in the support and administration of an EAP.
Applicants for Employment
You must make sure that all driver applicants are fully aware of the employer's commitment to a controlled substances and alcohol-free workplace.
A statement should be added to the driver application form in which the prospective driver agrees to follow the employer's controlled substances and alcohol policy and submit to testing if performing a safety-sensitive function. Persons who wish to transfer to a safety-sensitive function must be made aware of these policies. A statement similar to the one below should be added to all notices for driver applicants:
Applicants for positions that require driving a commercial motor vehicle (CMV) at any time will be required to undergo controlled substances and at our discretion, alcohol testing prior to employment and will be subject to further testing throughout their period of employment. Applicants will also be asked to sign forms for release of information from previous employers in all cases where driving a CMV was one of your functions. Failure to sign will prevent this employer from using you as a CMV driver.
Drivers will be requested to provide written consent to obtain information from previous employers about the drivers (40.25). This information must include
- Alcohol tests with concentrations of 0.04 or greater
- Positive controlled substances test results
- Refusals to test
- Information on other violations of DOT agency drug and alcohol testing regulations
- If necessary, evidence of successful completion of the return to duty process.
Details of this requirement and pre-employment testing can be found in Chapter 5, "Types of Testing."
In addition to these pre-employment statements, as part of their orientation, driver applicants who submit to and pass the preemployment controlled substances tests should be given a briefing similar to that given current drivers and must be given a copy of the policy statement.
Example of a Certificate of Receipt
I have received a copy of _________________'s controlled substances and (employer) alcohol policies and procedures.
Driver's Name (printed)
Please Sign and Return This Card.