Implementation Guidelines for Alcohol and Drug Regulations - Chapter 5
Types of Testing
The FMCSA regulations require you to implement the following types of controlled substances and alcohol tests:
- Pre-employment (controlled substances only)
- Reasonable suspicion
This chapter describes the major requirements of each of these types of tests.
Section 1. PRE-EMPLOYMENT TESTING
All applicants for employment on a permanent or temporary basis as a CMV driver, or current employees who wish to remain CDL drivers, must be given pre-employment tests for controlled substances. Prior to conducting the test, you must inform the applicant or driver in writing of the testing requirements (§382.601).
The purpose of pre-employment testing is to deter and detect controlled substances abuse by driver-applicants. Pre-employment testing identifies drivers who could bring a controlled substances problem into your organization.
A driver-applicant shall not be allowed to perform as a driver unless the employer has a verified negative controlled substances test result from the MRO for the driver-applicant.
You are required to conduct pre-employment tests each time a driver returns to work after a layoff period when the driver has not been subjected to random controlled substances testing for more than 30 days or has been employed by another entity. You must notify a driver-applicant of the results of a pre-employment controlled substances test if the driver-applicant requests the results within 60 days of being notified of the disposition of the employment application. For examples illustrating whether or not you need to conduct pre-employment tests, please refer to table 5.1, Pre-employment Testing Examples.
Exceptions for Pre-employmentControlled Substances Testing
You may elect not to administer a pre-employment controlled substances test if
- The driver-applicant has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 and part 40 (or another DOT agency's controlled substances testing program) within the previous 30 days, and
- While participating in that program, the driver-applicant either was tested for controlled substances within the past 6 months or participated in a random testing program for the previous 12 months, and
- The employer verifies that no prior employer of the driver-applicant has records of a violation of Part 382, subpart B or the controlled substance prohibited conduct rules of another DOT agency within the previous 6 months (§382.301(c)).
Pre-employment Controlled Substances Testing Exception Recordkeeping
You must obtain enough information to show that the driver is qualified under the regulations. If you operate under either of the two exceptions mentioned above, you must contact the previous testing program to verify the following:
- Name(s) and address(es) of the program(s),
- That the driver participates or participated in the program(s),
- That the program is in compliance with 49 CFR part 40,
- That the driver has not refused to be tested for controlled substances,
- The date the driver was last tested for controlled substances, and
- The results of any tests taken within the previous 6 months.
You must obtain a release form signed by the driver-applicant authorizing the previous testing program to share this information with you and forward that release form to each of the driver's previous employers.
Table 5.1 Pre-employment Testing Examples
REQUIRED TO TEST
The following are some examples that describe situations in which an employer MUST conduct pre-employment tests, unless the employer utilizes an exception.
- A new employer just started operating CMVs. All drivers hired to drive CMVs subject to this rule will fall under the pre-employment testing requirements.
- A driver usually operates CMVs that do not require a CDL, but then is required to operate a CMV that requires a CDL for the same employer. A pre-employment test is required.
- Any driver who is hired and has not been part of a controlled substances program that complies with the FMCSA regulations for the previous 30 days must undergo a controlled substances test.
NOT REQUIRED TO TEST
The following are some examples that describe situations in which an employer may not have to conduct pre-employment tests.
- Employer A purchases employer B. Employer B drivers who are now Employer A drivers do not need to be tested because their employment status has not been interrupted.
- Pre-employment tests are not required when an employer's name changes.
- If a driver is transferred from one division to another within the same company, the pre-employment requirements do not apply. However, when a driver transfers from one wholly owned subsidiary or independently operated company to another, a pre-employment test is needed, unless the driver is subject to one of the exceptions.
Drivers Who Drive for You Sporadically, but Are Regularly Employed by Another Employer
If you use, but do not employ, a driver more than once a year, you must assure yourself once every 6 months that the driver participates in a controlled substances testing program that meets the requirements of the regulations. This means that if a driver is regularly employed by another employer
subject to part 382, and you use the driver to operate your commercial motor vehicles for two or more times in a 365-day period, you need only check with the driver's regular employer once every 6 months to obtain the pre-employment exception testing information, if you do not want to preemployment test the driver each time.
For example, a motor coach tour employer regularly employs a driver to operate motor coach tours along the Eastern seaboard. The driver has some extra days off from the employer. The driver asks you if you have any trips that will take 3 days to complete. You have a load to be delivered and have the driver go through your hiring process.
For controlled substances testing under your program, the driver states that he/she has had a negative controlled substances test in the last month. The driver provides you with a written authorization requesting that his/her regular employer release the information about his/her test results for the last 6 months to your employer. You obtain all of the records required by the exception and verify that the driver did have a controlled substances test in the last month. It was verified negative and the driver has no subsequent violations of the prohibited conduct in subpart B.
You use the driver for the trip and the driver returns to the motor coach employer after completing your trip. You use the driver again in 1 month and again after 4 months. You are not required by the regulations to check the driver's testing records at the motor coach employer when you use the driver at the one month and four month intervals. The driver, however, returns 7 months after you first used him/her and since the last time you checked the driver's testing records. Now you must again check with the motor coach employer to verify that the driver continues to
participate in the motor coach employer's testing programs and the driver has not violated the prohibited conduct regulations of the FMCSA or similar DOT agencies.
Two-Year Prior Employer Checks (49 CFR 382.413/40.25) You must also request the following information from previous employers concerning the driver-applicant's participation in a controlled substances and alcohol program within the preceding 2 years:
- Did the employee have alcohol tests with a result of 0.04 or higher?
- Did the employee have verified positive drug tests?
- Did the employee refuse to be tested?
- Did the employee have other violations of DOT agency drug and alcohol testing regulations?
- If you answered "yes" to any of the above items, did the employee complete the return-to-duty process?
- Did a previous employer report a drug and alcohol rule violation to you?
You must as an employer ask prospective driver-applicants if they have failed or refused a DOT drug or alcohol pre-employment test within the past 2 years from an employer who did not hire them (§40.25(j)). With respect to any driver-applicant who violated a DOT drug and alcohol regulation, you must obtain documentation of the individual's successful completion of DOT return-to-duty requirements (including follow-up tests).
You must obtain the driver-applicant's written consent (see sample forms) to obtain the information from the driver-applicant's previous employers as acondition of employment. The FMCSA expects you to obtain the information as soon as possible and prior to using the driver to perform any safety-sensitive functions other than initial road testing of the driver. However, if this is not feasible, you will have up to 30 days after the driver initially performs safety-sensitive functions to obtain the information.
If you make a good-faith effort to obtain the information as soon as possible and you are unable to obtain this information within the 30-day period, you may continue to use the driver after the 30-day period, if you properly document your good-faith effort to request and obtain the information. However, if you failed to request the information from any prior employer of the driver, you must stop using the driver. See table 5.2 for an example of a good-faith effort to obtain a driver's prior employers' testing records.
Table 5.2. An Example of a Good-Faith Effort for Obtaining Prior Testing Information
A good-faith effort might begin with obtaining the driver's written consent on your release of information form. The driver should complete the document at the time the driver prepares other documents in the hiring process (e.g., §391.21, Application for Employment.) Immediately after you make your conditional offer of employment, send the written consent, along with how you would like the information transmitted to you (e.g., by secure and confidential fax, by certified mail, by telephone to a designated person) to the previous employer by certified mail.
After a reasonable period, you should contact the driver's previous employers' alcohol and drug testing program manager(s) to ask about the status of your request to obtain the driver's testing records
the previous employer(s). You should not wait until a few days before the first time you will use the driver to perform safety-sensitive functions to make a follow-up contact with the previous employers.
Previous employers are required to forward their testing information immediately upon receipt of the specific written consent to you or the third-party administrator designated to receive the information.
If a driver's previous employer has gone out of business, refuses to comply with 49 CFR section 40.25 requirements to forward their testing information about the driver to you, or if for some other reason you cannot obtain the testing information from a particular employer, document the facts and any related information and retain them in your files.
The information should be provided on the release of information form sent to them. They should sign, answer the questions, and send it back. You arerequired to maintain a written, confidential record with respect to each past employer contacted for three years.
Once you have determined that you will hire the driver-applicant and the driver-applicant has provided the written consent, you must provide to each employer the written request authorizing release of the informaation to you. You may wish to fax the consent form
to ensure the previous employer receives the driver's consent and request for information.
It is important to document the request for, and inability to receive, information from the driver's prior employers. In the event of an FMCSA investigation of your program, you may be asked to produce this documentation for the FMCSA investigator. (See sample forms.)
If you have not heard from the driver's previous employer(s) after a day or so, you should contact them and determine the status of your information request. In the event that you do not get an answer from the prior employer, or they ignore your request, document the attempt and file the information.
If you receive information indicating that the driver has tested positive for controlled substances, tested at or above 0.04 alcohol concentration, or refused to be tested, you must not use that driver to perform safety-sensitive functions unless the driver has followed the requirements of 49 CFR part 40, subpart O and has been advised by a substance abuse professional that the driver may return to work. These requirements include being evaluated by a substance abuse professional, complying with any recommended treatment, passing a return-to-duty test, and having at least six follow-up tests within the first 12 months of returning to work as a driver.
If you obtain records from the driver's previous employers verifying that the driver has violated 49 CFR Part 382, subpart B within 30 days of your use of the driver, you must immediately stop using the driver and determine what, if anything, the driver has complied with in part 40, subpart O. If the driver has not had a follow-up evaluation by an SAP, after any alcohol test above 0.04, any verified positive controlled substances test, or the driver is refusing to test, you may not use
the driver until you have received a follow- up letter from the SAP. The letter must follow the format shown in 49 CFR section 40.311(d).
If the driver has not had a return-to-duty test after obtaining a letter of compliance from an SAP, a return-to-duty test is necessary. A pre-employment negative controlled substances test and an alcohol test result of less than 0.02 alcohol concentration conducted by you will satisfy the requirement for a return-to-duty test in this instance. However, you will be responsible for ensuring that at least six follow-up tests are conducted within the first 12 months that the driver is employed or used at your organization.
If the driver has provided a previous employer with proper documentation for return to work and the driver has taken a return-to-duty test or a pre-employment test at the previous employer, but the previous employer did not complete all of the required follow-up tests within the first 12 months, you will be responsible for ensuring the remaining tests are conducted.
Section 2. REASONABLE SUSPICION TESTING The FMCSA regulations require you to test a driver if a trained supervisor has reasonable suspicion that the driver has used a controlled substance or has misused alcohol as defined in the regulations (§382.307). The request to undergo a reasonable suspicion test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odor of the driver. These observations may include indications of the chronic and withdrawal effects of controlled substances. The chronic and withdrawal effects of controlled substances may not be the sole indicator for reasonable suspicion, but may be used in conjunction with other indicators.
Reasonable suspicion testing is designed to provide you with a tool to identify affected drivers who, through alcohol or controlled substances misuse, may pose a danger to themselves and others in their performance of safety-sensitive functions. Drivers may be at work in a condition that raises concern regarding their safety or productivity. A supervisor must then make a decision as to whether reasonable suspicion exists that a controlled substance and/or alcohol may be causing the behavior.
Only one qualified supervisor or company official is required to witness the conduct of the driver; however, it is a good business practice to have at least two qualified supervisors or company officials witness the conduct. Supervisors or company officials who make the determination of whether to test must be trained in the physical, behavioral,
speech, and performance indicators of probable alcohol misuse and use of controlled substances (see Chapter 4, education and Training.)
To protect yourself and your drivers, supervisors who make the determination that reasonable suspicion exists to conduct an alcohol test may not conduct the alcohol test on that driver, unless they have been trained.
Reasonable suspicion alcohol testing is permissible only if the supervisor's observations are made during, just preceding, or just after the driver is performing safety-sensitive functions or is attempting to perform safety-sensitive functions. In contrast, you may test a driver for controlled substances under reasonable suspicion based on observations at any time the driver is on duty.
Besides recognizing valid objective signs and symptoms of controlled substances use and alcohol misuse, supervisors must also know the proper procedures for confronting and referring the driver for testing. If supervisors are not trained, or are not fair and objective in requesting reasonable suspicion tests, driver complaints of harassment will result. Be careful not to expect that training alone will make your supervisors experts in detecting substance abuse.
The overt signs and symptoms of substance abuse can often be masked and may be subtle enough to avoid direct detection.
If a supervisor, trained to identify the signs and symptoms of controlled substances use and alcohol misuse, reasonably concludes that objective facts indicate controlled substances use or alcohol misuse, this is sufficient justification for testing. A final practical check is whether the supervisor would [Truck driver receiving training from a supervisor in the passenger seat.]
have been less responsible in not taking action than in asking the driver to submit to testing. Remember, safety is the first priority!
If the alcohol test is not administered within 2 hours following observations triggering the request to test, you must prepare and maintain a record stating the reasons the alcohol test was not done promptly. If the test is not conducted within 8 hours of the observations triggering the request to test, attempts to administer the test must cease, and the supervisor shall indicate in the record the reason the test was not conducted. If the alcohol test is not conducted within 8 hours, the driver shall be placed out of service for 24 hours.
For controlled substances, the driver must report for collection within a reasonable time. However, you are encouraged to collect the specimen as soon as possible following the observations triggering the request to test, because the test's ability to detect controlled substances declines with the passage of time.
Supervisors making reasonable suspicion determinations shall document those observations within 24 hours of the observed behavior or before the results of the controlled substances test are released, whichever is earlier.
Drivers shall not perform safety-sensitive functions if under the influence of or impaired by alcohol, as determined by their trained supervisor. Following a reasonable suspicion determination, resulting in a positive test, supervisors shall not permit the driver to perform or continue to perform safety-sensitive functions until 24 hours have elapsed. If an evidential breath test device is unavailable, the motor carrier is required to remove the driver from performing safety-sensitive functions until 24 hours have elapsed. You are prohibited from taking any additional action under FMCSA authority against a driver based solely on the driver's behavior and appearance. You may have, however, additional policies under your own authority. Flow charts detailing the reasonable suspicion testing process for alcohol and controlled substances appear in the appendix at the end of this chapter.
Section 3. POST-ACCIDENT TESTING
The FMCSA regulations require testing in specific CMV accidents (§382.303). An accident is defined as an occurrence involving a CMV operating on a public road that results in (1) a fatality; or (2) bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (3) one or more motor vehicles incurring disabling damage as a result of the accident, requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle.
There is a significant difference between reasonable suspicion testing and post-accident testing. Reasonable suspicion requires some indication of a link between witnessed behavior and substance abuse before a test can be requested. Post-accident testing is mandatory when certain criteria are met.
Drivers subject to post-accident testing are those who
• While performing safety-sensitive functions are involved in an accident resulting in the loss of human life, or
• While performing safety-sensitive functions are involved in a nonfatal accident resulting in the driver receiving a citation under State or local law for a moving traffic violation arising from the accident.