1.

Employer record retention:
Medical review officers (MROs) are required to maintain the hard copy custody and control form (CCF) Part 2, for positive drug test determinations. Are employers subject to the same requirement?

Yes. Employers are required to maintain records sent to them by the MRO. MRO reporting requirements for drug test results are found at 49 CFR 40.163. Pursuant to 49 CFR 382.401, employers must maintain certain drug and alcohol testing records for five (5) years, including positive drug test results. Employers may maintain these records electronically as long as the records can be produced for inspection pursuant to 49 CFR 390.31.

2.

Drug and alcohol program applicability:
My company purchased a large tow truck that is 26,001 lbs. or more gross vehicle weight rating (GVWR). We do not currently employ any drivers who possess a commercial driver’s license (CDL). The vehicle has only been driven a few times by a family friend, who is not an employee and has driven the vehicle as a favor absent any compensation. Does our company need a U.S. Department of Transportation (DOT) drug and alcohol testing program to test this occasional driver?

Yes. In accordance with 49 CFR 382.103, your company must implement a DOT drug and alcohol program for all drivers operating a commercial motor vehicle (CMV) that requires the driver to possess a CDL. 49 CFR 382.107 defines “Driver” as “any person who operates a commercial motor vehicle. This includes, but is not limited to: full time, regularly-employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.”

3.

Random testing pools:
Can an employer include non-commercial driver’s license (CDL) drivers (e.g., operates commercial motor vehicles (CMV) with 18,000 lbs. gross vehicle weight rating) in the U.S. Department of Transportation (DOT) random testing pools?

No. An employer may not include non-CDL drivers in the DOT random testing pool. The DOT and Federal Motor Carrier Safety Administration drug and alcohol testing regulations apply to any person who operates a CMV, as defined in 49 CFR 382.107, in intrastate or interstate commerce and is subject to the CDL requirements of 49 CFR Part 383. Including non-CDL drivers in the random testing pool violates the DOT drug and alcohol testing rules. An employer may perform testing beyond that required by the DOT rules, but the employer may not represent such testing as a DOT test and must keep non-DOT drug and alcohol testing completely separate from DOT testing. See 49 CFR 382.305 random testing and published regulatory guidance question No. 15.

4.

Drug and alcohol testing applicability:
Are State government agencies that employ commercial driver’s license (CDL) drivers to operate commercial motor vehicles (CMVs) exempt from the federal drug and alcohol testing requirements?

No. State government agencies and the CDL drivers employed by State agencies are not exempt from drug and alcohol testing requirements. CDL regulations at 49 CFR 383.5 define employers as any person (including the United States, a State or a political subdivision of a State, and the District of Columbia) who owns or leases a commercial motor vehicle or assigns employees to operate a commercial motor vehicle. 49 CFR 382.103(c) specifically provides that the exceptions from certain Federal Motor Carrier Safety Administration (FMCSA) regulations for U.S., State, and local government agencies do not apply to the FMCSA drug and alcohol testing requirements in 49 CFR Part 382. The only exceptions to Part 382 requirements are found in 49 CFR 382.103(d).

5.

Commercial driver’s license (CDL) schools and student drivers:
Is a person attending a truck driving school, who does not yet have a commercial learner’s permit (CLP) or CDL, required to complete the return-to-duty process if the student tests positive on a U.S. Department of Transportation (DOT) pre-employment test at the school?

No. Persons who do not possess CLPs or CDLs are not subject to the DOT drug and alcohol testing program requirements. Therefore, a drug test administered by the driving school on a student who does not possess a CLP or CDL does not qualify as a DOT pre-employment test. The student would not be subject to the DOT return-to-duty process.

Truck or bus driving schools/employers must include student drivers who possess CLPs or CDLs in the DOT testing program before such drivers operate commercial motor vehicles to complete their coursework to qualify as drivers. See regulatory guidance related to the Drug and Alcohol Program Applicability 49 CFR 382.103, Question 2

6.

Random alcohol testing:
A commercial driver’s license (CDL) driver is selected for a random drug test and the employer notifies the driver to be tested. The driver has not just performed, is not performing, and will not be immediately performing a safety-sensitive function. The collection site instructs the driver to submit to a random drug test and a random alcohol test. The driver tests positive for the random alcohol test. Should the driver have been tested for alcohol? Is the driver required to undergo the return-to-duty process before performing safety-sensitive duties as a result of the positive alcohol test?

The answer to both questions is no. 49 CFR 382.305(m) states that “A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.” As such, the test was improper. The driver does not have to complete the return-to-duty process. The employer carrier must cancel the improper alcohol test, documenting for the record the circumstances resulting in the cancellation.

7.

Multi-modal random testing:
How does an employer carrier determine which U.S. Department of Transportation (DOT) random testing pool an employee is subject to when the employee performs safety-sensitive functions subject to the random testing requirements of more than one DOT agency (e.g., Federal Transit Administration (FTA) and Federal Motor Carrier Safety Administration (FMCSA))?

An employee performing duties subject to more than one DOT Agency’s regulations must be randomly tested at the percentage rate established for the calendar year by the DOT Agency regulating more than 50 percent of the employee’s safety-sensitive functions. [See 49 CFR 382.305(n).] So, if you have an employee who drives your trucks 75 percent of the time and operates your transit busses 25 percent of the time, that employee needs to be in the FMCSA-regulated pool. All other testing (e.g., pre-employment, post-accident, reasonable suspicion) is regulated under the Agency that regulates the function the employee was performing at the time of the event. If an employee is involved in a crash while operating a transit bus, the employee is subject to post-accident testing under FTA regulations even if the employee is in the FMCSA random pool.

8.

Administrative error on custody and control form (CCF):
The CCF for a pre-employment U.S. Department of Transportation (DOT) test mistakenly indicates the test was conducted pursuant to Federal Railroad Administration (FRA) authority. The form should have indicated Federal Motor Carrier Safety Administration (FMCSA) authority because the employee is a commercial driver’s license (CDL) driver. Does this procedural error require the employee to have another pre-employment test?

No. It is not necessary to retest the driver employee as long as the test was administered in accordance with 49 CFR Part 40 and employee protections under Part 40 were not affected. Employers or their designated service agents should ensure that appropriate changes are documented (e.g., for Management Information System reporting purposes). See U.S. Department of Transportation Office of Drug and Alcohol Policy and Compliance September 2001 Part 40 Questions and Answers related to procedural problems that do not result in the cancellation of a test. [See 49 CFR 40.209(b)(1) .]

9.

Part-time drivers:
Do part-time commercial driver’s license (CDL) drivers need to be in an employer’s U.S. Department of Transportation (DOT) random testing pool?

Yes. All CDL drivers of commercial motor vehicles must be included in the DOT random pool. [See related regulatory guidance to 49 CFR 382.305, Question 2.]

10.

Random testing:
Does an employer have to join a consortium/pool in order to have its drivers random drug tested, or can this program be managed in-house by the employer?

If a carrier employer has more than one commercial driver’s license (CDL) driver subject to U.S. Department of Transportation (DOT) drug and alcohol testing, the employer may manage its random testing program. Carrier employers with only one CDL driver are required to place the driver in a consortium for random testing purposes. [See related regulatory guidance to 49 CFR 382.305, Question 11.]

11.

Investigative authority over service agents:
Does the Federal Motor Carrier Safety Administration (FMCSA) have authority to investigate consortiums/third-party administrators and other service agents?

Yes. FMCSA has authority to investigate service agent compliance with 49 CFR Parts 40 and 382 as required by 49 CFR 40.331 Under the Safe Roads Act of 2012, Congress provided authority for civil penalty actions against service agent violations of alcohol and drug testing requirements. [See: Moving Ahead for Progress in the 21st Century Act, P.L. 112-141 (MAP-21), Sec. 32402, 49 U.S.C. §31306a(f)(2) & (k)(1).]

12.

49 CFR Part 40 Subpart O return-to-duty process:
A commercial driver’s license (CDL) driver tests positive on, or refuses to take, a U.S. Department of Transportation (DOT) drug test. What must the driver do to be able to resume operating any type of commercial motor vehicle (CMV)?

A CDL driver who tests positive on a DOT test, or refuses to take a DOT test, must successfully complete the return-to-duty (RTD) process with a DOT-qualified substance abuse professional. The requirements for the RTD process are found in 49 CFR Part 40 Subpart O. [See 49 CFR Part 40 Subpart O.]

13.

Substance abuse professionals (SAP):
How do I find U.S. Department of Transportation (DOT)-qualified SAPs in my area?

Employers are required to provide employees who have engaged in conduct prohibited by 49 CFR Part 382 Subpart B with contact information for SAPs. DOT does not develop or maintain a list of qualified service agents. An employer can check with industry associations, the yellow pages, or the web for DOT-qualified SAPs. The employer is ultimately responsible for compliance with the DOT drug and alcohol testing regulations; therefore, as an employer, you must ensure that the SAP you identify meets all the DOT required qualifications. [See related regulatory guidance to 49 CFR 382.605, Question 4.]

14.

Pre-employment testing:
If a driver is terminated and returns to safety-sensitive functions with the same employer, is the driver subject to a U.S. Department of Transportation (DOT) drug and alcohol pre-employment test?

If a driver has been removed from a DOT random testing pool for more than 30 days, the employer must administer a pre-employment test and receive a negative test result before the driver may operate a commercial motor vehicle. If less than 30 days have passed since the driver participated in a DOT random testing program, the employer may re-employ the driver without a pre-employment drug test. This situation only applies to re-employment with the same employer. [See related regulatory guidance to 49 CFR 382.301, Question 3.]

15.

Substance abuse professional (SAP) evaluation:
Can employers or drivers seek a second SAP evaluation if they disagree with the first SAP’s recommendations?

No. As an employee with a U.S. Department of Transportation (DOT) drug and alcohol regulation violation, when you have been evaluated by a DOT-qualified SAP, you must not seek a second SAP’s evaluation in order to obtain another recommendation. As an employer, you must not seek a second SAP’s evaluation if the employee has already been evaluated by a qualified SAP. If the employee, contrary to requirements, has obtained a second SAP evaluation, as an employer you may not rely on the second SAP’s evaluation. [See 49 CFR 40.295.]

16.

Follow-up testing:
Can a driver who tested positive and completed the return-to-duty process change employers before the follow-up testing is completed?

Yes, but the new employer must continue the follow-up testing plan. The requirements of the substance abuse professional’s (SAP) follow-up testing plan “follow the employee” to subsequent employers or through breaks in service. [See examples in 49 CFR 40.307(e).]