General Practice, Solo & Small Firm DivisionTechnology & Practice Guide
Drug Testing for Professional Drivers
It's the LawJOE MAASSEN Joe Maassen serves as Deputy General Counsel for the Wisconsin Department of Transportation. He is the author of numerous articles on drunk driving and driver licensing issues, and has lectured extensively throughout Wisconsin on the Federal Drug and Alcohol Testing Mandate.
Unfortunately, the illegal use of controlled substances 1 and the misuse of alcohol are a deadly reality on the highways of this country. Sometimes the abusers and misusers are professional drivers of large trucks, passenger buses, and vehicles transporting hazardous materials. To curb drug and alcohol abuse by professional drivers, Congress passed the Omnibus Transportation Employee Testing Act of 1991 2, requiring employers to provide drug and alcohol testing.
If you have a client that employs people to operate commercial motor vehicles 3, then your client must have a drug- and alcohol-testing program in place by January 1, 1996. It doesn't matter whether your client is large or small. It doesn't matter whether the client is a self-employed driver or employs others. It doesn't matter if your client is a city, town, village, school board, public utility, or any other type of public employer. It doesn't matter if your client is an owner-operator of a milk truck, a dump truck, or any other commercial motor vehicle 4. It doesn't matter if your client is a religious or civic organization. All employers of commercial motor vehicle operators must meet this requirement.
The Omnibus Transportation Employee Testing Act and Title 49 of the Code of Federal Regulations, Part 382, require employers of drivers of commercial motor vehicles to test those drivers for the prohibited use of alcohol and controlled substances. The law prohibits commercial motor vehicle drivers from performing safety-sensitive 5 functions after an alcohol test 6 result indicating a 0.02 alcohol concentration (AC) 7 or a positive drug test result 8. The law also prohibits drivers from using alcohol or illegal drugs while on duty and from performing safety-sensitive functions within four hours of using alcohol.9 Likewise, employers may not use a driver to perform safety-sensitive functions under these conditions.
The requirements for drug and alcohol testing apply to anyone operating interstate and intrastate commercial motor vehicles. This includes all private- and public-sector employers and employees with few exceptions.10
Small employers (those with fewer than 50 covered drivers as of March 17, 1994) must implement a fully operational testing program by January 1, 1996. Large employers (those with 50 or more commercial motor vehicle drivers as of March 17, 1994) had to implement a fully operational program by January 1, 1995.11 What will happen to an employer who does not have a testing program in place by January 1, 1996? You should advise such clients to review the terms of their insurance coverage. If any of their employees is involved in a highway accident where drug or alcohol use by the employee is a factor, they must be prepared to assume liability and face the penalties imposed by this act. Employees or employers who violate the provisions of this law are subject to fines of up to $10,000 for each offense.12
The law also specifies the safety measures employers are to take if a driver tests positive. If an alcohol test indicates a driver has an alcohol concentration (AC) of at least 0.02 but less than 0.04, the employer may not permit the employee to perform safety-sensitive functions until 24 hours after the test was administered.13 If a driver has a test result of 0.04 AC or greater, the driver must be removed from any safety-sensitive function and may return only after the following conditions have been met:
- The employee undergoes evaluation by a substance abuse professional 14 and, where necessary, rehabilitation.
- A substance abuse professional determines that the employee has successfully complied with any required rehabilitation.
- The employee undergoes a return-to-duty test with a result of less than 0.02 AC.15
- If a drug test indicates that an employee has used controlled substances, the employer must remove the employee from safety-sensitive functions until the following conditions have been met:
- The employee undergoes evaluation by a substance abuse professional and, where necessary, rehabilitation.
- A substance abuse professional determines that the employee has successfully complied with any required rehabilitation.
- The employee takes a return-to-duty test with a verified negative test result. 16
The federal regulations require that employers give covered drivers an opportunity for treatment. This means that if a covered driver engages in prohibited conduct, the employer must advise him or her of available evaluation and treatment programs. However, the regulations do not require an employer to pay or provide for rehabilitation or to hold a job open for an employee.19
The federal regulations also do not address commercial driver's license suspensions or other disqualifications.20 A driver who is prohibited from performing safety-sensitive functions may be assigned to other functions until the employee complies with the requirements for returning to duty.21
Each employer must have a program to conduct six types of testing: (1) preemployment, (2) postaccident, (3) random, (4) reasonable suspicion, (5) return-to-duty, and (6) follow-up testing of drivers for the use of alcohol or controlled substances.22
Drivers may not refuse to submit to any of these tests. A driver who refuses must be treated just as if he or she had an alcohol concentration of 0.04 or greater or tested positive for a controlled substance. Refusal to submit to a preemployment test or return-to-duty test does not trigger a requirement for further evaluation.23 However, such refusal does mean that the employee cannot perform safety-sensitive functions.
Preemployment testing. Originally, the federal regulations required both drug and alcohol testing before employment. However, preemployment alcohol testing was invalidated by the Fourth Circuit Court of Appeals in American Trucking Associations, Inc. v. Federal Highway Administration.24 Thus, only preemployment drug testing is required at this time. The employer may test at any time during the hiring process.
The regulations do not establish consequences for applicants or employees who have a positive result in a preemployment test. 25 Each employer must therefore decide for itself how to handle a positive preemployment test.
Basically, preemployment testing is required only the first time a driver reports for duty. However, new applicants to the company are not the only employees who must take this test. The requirement also covers current employees applying to move into a safety-sensitive function. In addition, employers must conduct preemployment testing each time a driver returns to work after a layoff during which the driver was not subject to random drug testing.26 Finally, if an employer uses a driver more than once a year without employing the person, the employer must ensure the driver is tested once every six months for controlled substances.27
Besides testing for a job applicant's current use of controlled substances, an employer must investigate past use. From the applicant's previous employer, the new employer must obtain information for the previous two years of any positive drug tests, alcohol test results of at least 0.04 AC, and refusals to be tested. The applicant must give written consent for the release of this information. No employer may permit a driver to perform safety-sensitive functions for more than 14 days without obtaining this information from previous employers.28
Post-accident testing. Post-accident tests should occur as soon as possible after an accident. Postaccident testing for alcohol and controlled substances is warranted in either of the following situations:
- The accident involved a loss of human life.
- The driver received a citation under state or local law for a moving traffic violation arising from the accident. 29
If a postaccident test for alcohol is not administered within two hours of the accident, the employer must prepare and maintain a record stating why the test was not administered. 30 If a postaccident alcohol test cannot be administered within eight hours, the employer must stop any attempts to administer the test. The employer must then prepare and maintain a record stating why the test was not administered.
A driver must be tested for controlled substances within 32 hours of the accident. If a drug test is not administered within 32 hours, the employer must prepare and maintain a record stating the reasons the test was not promptly administered.31
Each employer must provide each driver with the necessary postaccident procedures and instructions, so drivers can comply with the requirements of postaccident testing. Options for complying with this requirement include postaccident testing kits and bulletin board notices.32
Instead of administering a postaccident test, employers may rely on tests administered by on-site police. These may be a breath or blood test for the use of alcohol and a urine test for the use of drugs.
Random testing. The only testing not triggered by or conducted in reaction to another event is random testing. Each employer must use a scientifically valid method to select drivers for random testing. Initially, the employer must test 25 percent of the average number of drivers for alcohol use. The initial rate for drug testing must be 50 percent of the average number of driver positions.33
Random alcohol testing must be administered while the driver is performing safety-sensitive functions, just before the driver is to perform such functions, or just after the driver has ceased performing such functions. There is no similar requirement on testing for controlled substances. Drug tests may be performed at any time the driver is working for the employer.34
Random alcohol and drug testing must be unannounced and spread throughout the calendar year.35 The testing program must ensure that a driver never knows that testing is finished for the year.36 Each driver who is selected for random alcohol or drug testing must immediately proceed to the test site.
Employers with just one or two drivers are encouraged to join consortiums that have at least two or more drivers in the random pool.37 Smaller private and public employers will probably be best served by working with vendors that can provide turnkey testing programs and manage a random testing consortium. A growing number of providers offer such programs.38 A provider of these services should agree to give each employer in the consortium a complete description of how it assembles the random selection pool, how it identifies and notifies drivers, where collection sites are located, and how it will report the test results on each driver. The test provider should also make available summary reports on the program and documentation that the consortium is testing at the minimum annual rate for alcohol and controlled substances.39
Probably some employers will want to develop and administer their own testing program. A good source for learning more about the process is likely to be large private- or public-sector employers in the local community. Additionally, the U.S. Department of Transportation, Federal Transit Administration (FTA), has published "Implementation Guidelines for Drug and Alcohol Testing." This publication provides an in-depth discussion of formulating a testing program and includes helpful charts and sample documents. It is available to the public for $58 from National Technical Information Services. 40
Reasonable suspicion testing. Whenever an employer has reasonable suspicion to believe that an employee has violated the prohibitions against using alcohol or controlled substances, the employer must require the employee to take an alcohol or drug test. For there to be reasonable suspicion of alcohol use, the employer must articulate specific observations about the driver's appearance, behavior, speech, or body odors at the time of the suspicion.41 The person making those observations must be a supervisor or company official trained as required in the federal regulations,42 and that person may not conduct the alcohol test.43 The Federal Register indicates that supervisors may not use a third-party report as the sole basis for ordering a reasonable suspicion test.44
As with postaccident testing, if the alcohol test is not completed within two hours, the employer must record the reason. If the test is not administered within eight hours, the employer must stop trying to test the driver and must record the reason for not administering the test.45
An employer who has reasonable suspicion that an employee has used controlled substances must keep a written record of the observations leading to the reasonable suspicion. The record must be signed by the supervisor or company official who made the observation.
Persons designated to determine whether reasonable suspicion exists must receive at least 60 minutes of training on alcohol misuse and 60 minutes of training on drug use.46 But providing just the minimum levels of training may be risky. Most likely, 60 minutes of training is too little to prevent a supervisor from ordering tests whose results come back negative, giving employees credibility to later argue that the real reason for the test was harassment or discrimination. Conversely, if a supervisor with minimal training hesitates to send a driver for a test, and the employee becomes involved in an alcohol- or drug-related incident shortly thereafter, the employer could face even greater liability.
Return-to-duty testing. Before a driver may return to duty after violating any of the alcohol misuse provisions, the employer must require the driver to undergo a return-to-duty alcohol test. The test result must be less than 0.02 AC.47 Similarly, if an operator has violated the controlled substances provisions, the employer must require return-to-duty testing with a verified negative result for controlled substances.48
Follow-up testing. Each driver who tests positive for using alcohol or controlled substances is subject to at least six unannounced follow-up tests in the first 12 months after the driver's return to duty. 49 Also, a substance abuse professional may direct further testing during that period or for up to 60 months from the date the driver returns to duty.
Many people who misuse one drug also misuse others. Therefore, follow-up testing may include drug tests on a driver found to have been using alcohol, if the substance abuse professional has reason to suspect drug involvement. The opposite is also true.50
Information about Policies
Before testing begins, each employer must give each driver educational materials that explain the employer's policies and procedures for meeting the drug- and alcohol-testing requirements. At a minimum, the materials must discuss the following topics:51
- Who the employer has designated to answer questions about the employer's policies, procedures, and materials.
- Which drivers are subject to the drug and alcohol tests.
- What constitutes a "safety-sensitive function," to clarify what period of the workday the driver must be in compliance.
- What specific driver conduct is prohibited.
- Under what circumstances a driver will be tested for alcohol and/or drug use.
- What procedures will be used to test for the presence of alcohol and controlled substances.
- What procedures will be used to protect the driver's confidentiality.
- What procedures will assure the integrity of the testing, safeguard the validity of the test results, and ensure that the results are attributed to the correct driver.
- The requirement that a driver submit to alcohol and drug testing.
- What constitutes a refusal.
- What consequences drivers will face (including immediate removal from safety-sensitive functions) if they test positive for alcohol at or above 0.04 AC or for a controlled substance.
- What consequences drivers will face if they are found to have an alcohol concentration of at least 0.02 but less than 0.04.
- How the use of alcohol and controlled substances affects a person's health, work, and personal life, including signs and symptoms of an alcohol or drug problem.
- How to intervene when you suspect an alcohol or drug problem (including confrontation, referral to any employee assistance program, and/or referral to management).
Record Retention and Confidentiality
Each employer must maintain records of its program for preventing alcohol and drug misuse. It must maintain these records in a secure location with controlled access. This requirement is intended to help the government oversee and enforce the testing programs, as well as to protect employee confidentiality. 53
The records of test results may be maintained anywhere. However, if a federal representative asks to see the test results, the employer must make them available, upon two days' notice, at the employer's principal place of business.54
By March 15 of each year, the employer must prepare a summary of the results of the previous year's alcohol- and drug-testing program. Each year, FHWA selects a random sample of employers and requires them to submit their data for a given calendar year. It notifies the selected employers by mail in January of the year in which the data are due. The employer is responsible for the timeliness and accuracy of each report, whether submitted by itself or a third party acting on the employer's behalf. Therefore, any employer that uses third-party providers of employee testing should ensure, by contract or other means, that it has access to the third party's testing information.55
- 40 C.F.R. part 40.21 requires that employers conduct testing for the following controlled substances: marijuana, cocaine, opiates, amphetamines, and phencyclidine.
- 49 U.S.C. App. § 2717.
- As defined in 49 C.F.R. part 383.5, "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle-- (a) Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,00 pounds; or (b) Has a gross vehicle weight rating of 26,001 or more pounds; or (c) Is designed to transport 16 or more passengers, including the driver; or (d) 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 and which require the motor vehicle to be placarded under Hazardous Materials regulations (49 C.F.R. 172, subpart F). Note that 49 C.F.R. part 390 has a different definition for "commercial motor vehicle." That definition is not applicable for drug and alcohol testing. Also, some states may have enacted slightly different definitions of "commercial motor vehicle."
- 59 Fed. Reg. 7315
- 49 C.F.R. § 382.107 defines "safety-sensitive" to mean any on-duty functions in 49 C.F.R. § 395.2, including: (1) all time at a shipper or carrier, etc., waiting to be dispatched; (2) all time inspecting equipment; (3) all driving time; (4) all time in or on a commercial motor vehicle, except resting time; (5) all time loading or unloading; and (6) all time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle. 6. 49 C.F.R. parts 40.63 and 65 require both screening and confirmation tests for alcohol. Screening tests with a result of 0.02 AC or greater must be confirmed by an Evidential Breath Test device listed on the National Highway Transportation Safety Administration (NHTSA) Conforming Products list. The device must be capable of printing out each test result and sequentially numbering each test.
- The alcohol prohibition includes medications, foods, or other products containing alcohol that are not specifically manifested to be on the truck or bus. 49 C.F.R. § 382.203.
- 49 C.F.R. § 382.213.
- 49 C.F.R. § 382.205. See also 49 C.F.R. § 382.101.
- Only those few categories of drivers who have received full waivers from commercial driver licence requriements are waived from drug and alcohol testing. These categories include firefighters, certain Department of Defense personnel, some farmers, and recreational vehicle operators. 59 Fed. Reg. 7486.
- 49 C.F.R. § 382.115; 59 Fed. Reg. 7490.
- 49 C.F.R. § 382.507. See also 59 Fed. Reg. 7502 at § 382.507.
- 49 C.F.R. part 382.505. This Law Note describes drug- and alcohol-testing requirements for operators of commercial motor vehicles subject to FHWA regulations. The other operating agencies of the U.S. Department of Transportation--FAA, FRA, FTA, and RSPA--have enacted similar rules governing drug and alcohol testing for employees in their respective transportation industries.
- "Substance abuse professional" means a licensed medical doctor, licensed psychologist, social worker, employee assistance professional, or certified addiction counselor with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substance disorders. 49 C.F.R. § 382.107. Discussion in the Federal Register makes it clear that the phrase "with knowledge of and clinical experience in the diagnosis and treatment of alcohol-related disorders" applies to physicians, psychologists, and social workers as well as to certified addiction counselors. 59 Fed. Reg. 7335.
- 49 C.F.R. § 382.309(a). See also 59 Fed. Reg. 7494.
- 49 C.F.R. § 382.309(b). See also 59 Fed. Reg. 7494.
- 49 C.F.R. § 382.605(b). See also 59 Fed. Reg. 7503.
- 49 C.F.R. § 382.605(c)(1). See also 59 Fed. Reg. 7335.
- 49 C.F.R. § 382.605(d). See also 59 Fed. Reg. 7317, 7335.
- 59 Fed. Reg. 7493. See also 49 C.F.R. § 382.605.
- 59 Fed. Reg. 7496 at § 382.215. See also 49 C.F.R. § 382.215.
- 49 C.F.R. §§ 382.301, 382.303, 382.305, 382.307, 382.309, and 382.311. See also 59 Fed. Reg. 7496-7499; 59 Fed. Reg. 7321-7330.
- 49 C.F.R. § 382.211. See also 59 Fed. Reg. 7321; 59 Fed. Reg. 7496 at § 382.211.
- 51 F.3d 504 (1995).
- 59 Fed. Reg. 7322.
- 49 C.F.R. § 382.301. See also 59 Fed. Reg. 7496.
- See 49 C.F.R. part 382.413.
- Although 49 C.F.R. § 382.303 describes the events that trigger a postaccident test, the Federal Register says, "[T]he definition of accidents that trigger a post-accident test is contained in 49 C.F.R. § 390.5." That definition includes more events than are set forth in § 382.303. 59 Fed. Reg. 7496.
- 49 C.F.R. § 382.303(b)(1). See also 59 Fed. Reg. 7323.
- 49 C.F.R. § 382.303(2). See also 59 Fed. Reg. 7497.
- 49 C.F.R. § 382.303(d). See also 59 Fed. Reg. 7490, 7497.
- 49 C.F.R. § 382.305(a)(2). See also 59 Fed. Reg. 7326.
- The distinction in random testing between alcohol and drugs is based on several reasons: (1) more alcohol misusers are likely to be detected by observation than drug users; (2) the window of detection for alcohol is limited by its rapid dissipation; and (3) alcohol symptoms are generally easier to detect than those of drugs. 59 Fed. Reg. 7325. See also 59 Fed. Reg. 7497.
- 49 C.F.R. § 382.305(g). See also 59 Fed. Reg. 7324.
- 59 Fed. Reg. 7326, 7498.
- 59 Fed. Reg. 7326.
- In Wisconsin two such providers are Marshfield Laboratories, 1000 N. Oak Ave., Marshfield, WI 54449-5790, and General Medical Laboratories, 309 W. Washington Ave., Madison, WI 53703-2795.
- 59 Fed. Reg. 7499.
- The document order number is PB94205713, and the telephone number is (703) 487-4650.
- 59 Fed. Reg. 7499.
- 49 C.F.R. § 382.307(c).
- 49 C.F.R. § 382.307(c). See also 59 Fed. Reg. 7327. Note that reasonable suspicion alcohol testing is authorized only if the observation is made during, just preceding, or just after the period of the workday the operator is required to be in compliance with this regulation. 49 C.F.R. § 382.307(d).
- See 59 Fed. Reg. 7328.
- 49 C.F.R. § 382.307(e)(1). See also 59 Fed. Reg. 7327.
- See 49 C.F.R. part 382.603.
- 49 C.F.R. § 382.309(a).
- 49 C.F.R. § 382.309(b). See also 59 Fed. Reg. 7328, 7329.
- 49 C.F.R. § 382.311(a). See also 49 C.F.R. § 382.605(2); 59 Fed. Reg. 7329.
- 59 Fed. Reg. 7329, 7503.
- 49 C.F.R. § 382.601. See also 59 Fed. Reg. 7513.
- 59 Fed. Reg. 7333, 7502 at § 382.601; 49 C.F.R. § 382.601.
- 49 C.F.R. § 382.401(a). See also 59 Fed. Reg. 7330.
- 49 C.F.R. § 382.401(d). See also 59 Fed. Reg. 7499.
- 49 C.F.R. § 382.403(a), (b). See also 59 Fed. Reg. 7331, 7499.