Chapter 2.

REGULATORY OVERVIEW

Implementing portions of the FMCSA_required controlled substances use and alcohol misuse program may require you to modify existing substance abuse policies and programs or, in some cases, develop entirely new programs. The critical program element will be to test drivers in positions that require the driver to drive CMVs and perform attendant safety-sensitive functions. It is in this context

that you must formulate controlled substances and alcohol policies, communicate them to your drivers, and conduct testing. The goals of these activities are to enhance worker productivity and safety and ensure positive acceptance of the program. In keeping with the stated objective of enhancing productivity and safety, you are encouraged to make your controlled substances use and alcohol misuse program an integral part of your overall safety program.

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Section 1. WHAT THE REGULATIONS REQUIRE

The FMCSA regulations require that the following program elements be implemented or updated:

A policy statement on controlled substances use and alcohol misuse in the workplace (see Chapter 3, "Policy Development and Communication")

Supervisor education and training program (see Chapter 4, "Education and Training")

A controlled substances and alcohol testing program for persons, used in duties requiring the driving of CMVs (see Chapters 5, "Types of Testing," 6, "Controlled Substances Testing Procedures," and 7, "Alcohol Testing Procedures")

Evaluation of the driver who has violated the controlled substances and alcohol regulations (see Chapter 8, "Employee Assistance Programs, Rehabilitation, and Treatment")

Administrative procedures for recordkeeping, reporting, releasing information, and certifying compliance (see Chapter 9, "Administration").

Who Must Participate

These regulations apply to both employers and drivers of CMVs. An employer (also known as a motor carrier) is any person who owns or leases a CMV or assigns persons to operate such a vehicle (including the United States, a State, or the District of Columbia, (383.5), but not including U.S. territories such as Guam, Puerto Rico, and the U.S. Virgin Islands). A driver is any person who operates a CMV in commerce and is subject to commercial driver's license (CDL) requirements (382.103). The exemptions mentioned in parts 390 and 391 are not applicable to this program.

This definition also includes any employers who employ themselves as drivers. An employer who employs only himself/herself must comply with both the requirements that apply to both employers and to drivers. He/she must be part of a random testing pool of two or more persons.

The FMCSA regulations do not apply to employers and their drivers

(1) Who are required to comply with the Federal Transit Administration's (FTA) alcohol and controlled

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substance testing (49 CFR parts 653 and 654).

(2) Whom a State must waive from the Federal CDL requirements (part 383). These individuals include active duty military personnel, members of the Reserves; National Guard on active duty, including personnel on full-time National Guard duty, personnel on part-time National Guard training; and National Guard military technicians (civilians who are required to wear military uniforms); and active duty U.S. Coast Guard personnel, but not U.S. Reserve technicians (for more information, see "Drivers Waived from Obtaining a Commercial Driver's License" in the appendix).

(3) Whom a State has, at its discretion, waived from the requirements of the Federal CDL requirements. These individuals may include the following:

(i) Operators of a farm vehicle that is

(a) Controlled and operated by a farmer;

(b) Used to transport either agricultural products, farm machinery, farm supplies, or all three to or from a farm;

(c) Not used in the operations of a common or contract motor carrier; and

(d) Used within 150 miles of the person's farm.

(ii) Firefighters or other persons who operate CMVs that are necessary for the preservation of life or property or the execution of emergency governmental functions, are equipped with audible and visual signals, and are not subject to normal traffic regulation (for more information, see "Drivers Waived from Obtaining a Commercial Driver's License" in the appendix).

Some drivers are covered by more than one DOT agency (multimodal coverage). In most cases, the drivers are tested based on the tasks they perform the majority of the time.

Employees Who Are Affected

All drivers who drive CMVs must be included in your alcohol misuse and controlled substances use program. No other employees may be included. Although this sounds like a simple distinction, it is important to understand the definitions of "driver" and "safety-sensitive function."

"Driver" means anyone who operates a CMV, whether full-time, part-time, casual, intermittent, occasional, volunteer, leased, or independent. Independent drivers are included

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whether they are directly employed or under lease and whether they operate their own CMV or one of yours. As long as an independent driver is operating at your direction, he/she must be included in your program. Other employees who may not have the title of driver, but who sometimes operate a CMV, also must be included in your program. These may include maintenance workers, supervisors, clerks, and possibly even the president of your company. "Safety-sensitive functions" are tasks performed by CMV drivers that are applicable to prohibited conduct, testing, and consequences under these alcohol and drug testing regulations. See table 2.1 for a complete description of the various safety-sensitive functions.

Multimodal Coverage

In general, a person is subject only to one DOT agency rule at any point in time. The employer, however, may be subject to more than one DOT rule. Any employer that is subject to more than one DOT rule must determine when each rule is applicable.

Policy Statement

You must adopt a policy on substance abuse in the workplace (382.601). Among other items, the policy must

Identify which categories of drivers are subject to testing

Describe prohibited behavior

Describe testing procedures

Describe consequences for violating the controlled substances and alcohol regulations.

A detailed discussion of the specific requirements of the controlled substances and alcohol program policy statement is provided in Chapter 3, "Policy Development and Communication."

Education and Training

You must provide to all drivers educational materials that explain the requirements of your policies and procedures for the FMCSA controlled substances and alcohol testing regulations (382.601). Information on the effects and consequences of substance abuse on personal health, safety, and the work site, as well as indicators of substance abuse, must be provided.

Driver supervisors must receive additional training on the physical, behavioral, and performance indicators of controlled substances use or alcohol misuse to determine when drivers must be tested under reasonable suspicion (382.603). Chapter 4, "Education and Training," provides greater detail on the

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training and information requirements for employees and supervisors.

Testing

You must establish a controlled substances and alcohol (part 382, subpart C) testing program that follows FMCSA regulations for controlled substances testing (Chapter 6, "Controlled Substances Testing Procedures") and alcohol testing (Chapter 7, "Alcohol Testing Procedures"). The types of tests are

Preemployment (required for controlled substances only, optional for alcohol)

Reasonable suspicion

Post-accident

Random

Return-to-duty

Follow-up.

Each of these tests is described in detail in Chapter 5, "Types of Testing."

It is very important that your employees and supervisors understand the definitions of "driver" and "safety-sensitive" as used in the context of your testing program. The FMCSA originally determined that "safety-sensitive" functions (382.107) were functions performed as part of on-duty time. However, the FMCSA amended the rule to remove this complex link

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with on-duty time. See table 2.1 for a complete description of safety-sensitive functions.

Stand-Down

The drug testing process provides for an MRO to receive test results from the laboratory, verify a positive or negative result, and only then contact the employer to report the test result. Some employers wanted to be able to remove a driver from safety-sensitive functions

during the time between the laboratory notifying the MRO of a positive test result and the MRO verifying the test result.

The current rules in effect since August 1, 2001, allow employers to request a waiver from the standard test result reporting requirements and establish a stand-down program, to remove drivers from safety-sensitive functions during the time the MRO is verifying a positive test. The employer wishing a stand-down waiver

Table 2.1. Safety-Sensitive Functions

Safety-Sensitive Function

All time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer. This includes employees who are "eligible" at work to drive a CMV at anytime, e.g., salespersons, clerks, secretaries, supervisors.

All time inspecting equipment as required by 392.7, "Equipment, Inspection, and Use," and 392.8, "Emergency Equipment and Use," or otherwise inspecting, servicing, or conditioning any CMV at any time.

All driving time, which is any time spent at the driving controls of a CMV in operation.

All time, other than driving time, in or upon any CMV except time spent resting in a sleeper berth.

All time loading or unloading a vehicle, supervising or assisting in loading or unloading, attending a vehicle being loaded or unloaded, remaining ready to operate the vehicle, or giving or receiving receipts for shipments loaded or unloaded.

All time repairing, obtaining assistance for, or remaining with a disabled vehicle.

Not Safety-Sensitive

All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, postaccident, or follow-up testing required by part 382 when directed by an employer.

Performing any other work in the capacity of or in the employ or service of a common, contract, or private employer.

Performing any compensated work for any nonmotor carrier entity.

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must submit an application for such a waiver to the FMCSA, in accordance with 382.119. If the waiver is granted, the employer may establish a stand-down program provided that such a program will provide that all drivers are treated fairly and confidentiality is protected.

Referral for Evaluation

You must immediately remove every driver who has violated the prohibitions in Part 382, subpart B from driving CMVs and performing other safety-sensitive functions and refer the driver to a substance abuse professional for an evaluation. The evaluation is to determine the level of assistance the driver needs in resolving problems with alcohol misuse and/or controlled substances use.

The employer must advise the driver of the various resources available to the driver. These must include, but are not limited to, the names, addresses, and telephone numbers of substance abuse professionals, counseling, and treatment programs. Employers that have established employee assistance programs or have health insurance programs that include substance abuse treatment may refer their drivers to these programs.

Administrative Requirements

You must maintain certain testing records (382.401). Such records and other personal data associated with the testing program are subject to conditions for release. If requested by the FMCSA, annual reports must be submitted (382.403). DO NOT send your annual summary to the FMCSA unless the FMCSA requests that you do so.

State and Local Issues

The FMCSA regulations (382.109) preempt any State or local law, rule, regulation, or order when

Compliance with both the State or local requirement and these regulations is not possible,

Compliance with the State or local requirement is an obstacle to accomplishing and executing any requirement in these regulations.

However, these regulations do not preempt any provisions of State criminal law that impose sanctions for conduct leading to loss of life, injury, or damage to property.

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Section 2. WHAT THE

REGULATIONS DO NOT REQUIRE

The FMCSA regulations are focused on public safety and, therefore, do not address a number of concerns that are considered internal affairs of employers. The following issues are not specifically included in the FMCSA regulations:

The FMCSA does not require or authorize testing of employees who are not drivers (although you may choose to do so under your own separate authority if State and Local law permit).

The FMCSA does not require that you provide an employee assistance program (EAP) (although you may and are encouraged to do so).

The FMCSA does not require that employees be rehabilitated and reinstated (although you may do so).

Other than split-specimen testing, the FMCSA does not specify who pays for testing (check your State and local laws).

You may expand upon the regulatory requirements to tailor a program to meet specific needs. However, your policy must be very specific about what activities are

conducted under Federal regulations, which activities are conducted under your own authority, and which forms are to be used.

Going Beyond the Regulatory Requirements

Whenever you expand your controlled substances use and alcohol misuse program beyond the regulatory requirements and include aspects not specifically required by the regulations, you must make sure that your employees know which parts are FMCSA regulatory requirements and which are your own extensions beyond the regulations. For example, if you wish to test nonsafety-sensitive employees, you may do this under your own authority but must establish a separate testing pool.

Section 3. THE CONSEQUENCES OF FAILURE TO COMPLY

Penalties are assessed administratively by the FMCSA for violations of parts 382 and 40 and administrative orders may be issued

to bring about satisfactory compliance. Criminal penalties are also authorized to be sought in U.S. District Court under certain circumstances.

The maximum amounts of civil penalties that can be assessed for regulatory violations are established in the statutes granting

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enforcement powers. The determination of the actual civil penalties assessed in each case is based on those defined limits and consideration of information available at the time the claim is made concerning the nature, circumstances, extent and gravity of the violation, and with respect to the violator, the degree of culpability, history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice and public safety may require. In adjudicating civil penalty claims, and orders under the administrative procedures in this subchapter, additional information may be developed regarding these factors that may affect the final amount of the claim. Furthermore, consideration will be given to good-faith efforts to achieve compliance.

Criminal penalties may be sought against a motor carrier (employer), its officers or agents, a driver, or other persons when it can be established that violations were deliberate or resulted from a willful disregard for the regulations. Criminal penalties may be sought against an employee only when a causative link can be established between a knowing and willful violation and an accident or the risk thereof.

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Chapter 2 Appendix

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Terms and Definitions Used in Chapter 2

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Drivers Waived From Obtaining a

Commercial Driver's License

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