DOT DRUG

AND ALCOHOL
PROGRAM:
What You Need to Know

Copyright © 2021 AITIM Consulting Agency, Inc. All rights reserved.

What You Need to Know
Imagine the damage that an impaired driver operating one of your commercial

motor vehicles (CMVs) could inflict on the general public. Those companies that

have experienced this can tell you firsthand about the potential aftermath: lawsuit,

DOT crash investigation, fines and penalties, and the publicity nightmare.

With so much at stake, it is vital that your company detect and deter drug abuse

and alcohol misuse in its commercial drivers. A well-managed DOT drug and

alcohol testing program will assist in this endeavor.

When setting up your USDOT drug and alcohol testing program, it is important to

understand what is required of your company. Following are some commonly

asked questions associated with program management.

APPLICABILITY

WHAT REGULATIONS DO WE FOLLOW FOR DOT TESTING?

You must look at the following parts in 49 CFR (Code of Federal Regulations) in

order to fully understand your regulatory obligations:

PART 40: The U.S. Department of Transportation compiled testing and return-
to-duty procedures for all modes (i.e., highway, rail, maritime, air, pipeline,

transit) in Part 40. Part 40 applies to employers, collection sites, labs, medical

review officers, and substance abuse professionals. It is used for consistency in

performing and processing drug and alcohol tests and returning a covered

employee back to a safety-sensitive position.

PART 382: Each agency under the DOT umbrella has mode-specific
regulations on how to carry out testing. For example, the highway mode —

which is regulated by the Federal Motor Carrier Safety Administration

(FMCSA) — uses Part 382 to explain who is covered by the regulation, reasons

for testing, prohibitions, policies, training, recordkeeping, and so forth. This

information is unique to the agency.

WHO IS SUBJECT TO DOT TESTING REQUIREMENTS?

FMCSA links a safety-sensitive function to the operation of a vehicle

used in commerce, whether interstate or intrastate, that meets one of the

following criteria:

Has a Gross Combination Weight Rating (GCWR) or Gross Combination

Weight (GCW) of 26,001 pounds or more, whichever is greater, and includes

a towed unit(s) with a Gross Vehicle Weight Rating (GVWR) or Gross

Vehicle Weight (GVW) of more than 10,000 pounds, whichever is greater;

Has a GVWR or GVW of 26,001 pounds or more, whichever is greater;

Is designed to transport 16 or more passengers, including the driver; or

Is of any size and is used in the transportation of hazardous materials

required to be placarded.

Basically, this CMV definition from Section 382.107 mimics the

requirement for a commercial driver’s license (CDL). In other words, any

driver and motor carrier operating a CDL vehicle is subject to Part 382.

ARE OCCASIONAL DRIVERS SUPPOSED TO BE IN OUR

PROGRAM?

Yes, your company must include anyone operating a CDL CMV under your

authority in its testing program. This includes part-time, occasional, seasonal, and

intermittent drivers and leased owner-operators. Individuals at your company —

who are not drivers for HR purposes, but occasionally operate a CDL CMV — are

subject to DOT testing rules. Examples might include mechanics and managers.

ARE ALL CDL DRIVERS SUBJECT TO DOT TESTING?

Not necessarily. A driver who holds a CDL, but is never called upon to operate a

CDL CMV, does not qualify. Your employee should not be placed in your DOT

testing program based on licensing alone. However, if this individual may be called

upon to be a fill-in driver, you should include him or her on your driver roster and in
Part-time,
your DOT testing program. occasional,
seasonal, and
intermittent drivers
WHAT IS A SAFETY-SENSITIVE FUNCTION?

A safety-sensitive function includes all time from the time a driver begins to work
are all subject to
or is required to be in readiness to work until the time he or she is relieved from

work and all responsibility for performing work. Safety-sensitive functions include: DOT testing.

Waiting to be dispatched;

Inspecting, servicing, or conditioning a CMV;

Time at the controls of a CMV;

Time in or on a CMV, except sleeper-berth time;

 Loading, unloading, attending, or ready to operate a CMV, and

giving/receiving receipts; and

Repairing, obtaining assistance, or in attendance of a disabled CMV.

DRIVERS’ DOS AND DON’TS

WHAT IS PROHIBITED DRUG BEHAVIOR?

The drug prohibitions include:

Use of any drug or substance identified in 21 CFR 1308.11 Schedule I;

Use of any non-Schedule I drug or substance, except under the direction

of a licensed medical practitioner who is familiar with the driver’s

medical history and has advised the driver that the drug will not adversely

affect the driver’s ability to safely operate a commercial motor vehicle;

Testing positive for drugs (see thresholds in §40.87);

Having an adulterated or substituted test specimen; and

Refusal to take a required test.

Refusing a drug or alcohol test carries the same

consequences as a positive test result.

WHAT IS PROHIBITED ALCOHOL BEHAVIOR?

A driver is not allowed to use alcohol at certain times and in certain

situations. These alcohol prohibitions include:

Use while performing a safety-sensitive function;

Use during the 4 hours before performing a safety-sensitive function;

Reporting for duty or remaining on duty to perform a safety-sensitive

function with an alcohol concentration of 0.04 or greater;

Use during the 8 hours following an accident, or until the driver

undergoes a post-accident test; and

Refusal to take a required test.

Also, note that a driver found to have an alcohol concentration of 0.02 or

greater but less than 0.04 may not perform, nor be permitted to perform,

safety-sensitive functions for at least 24 hours. However, it is not a DOT

alcohol testing violation and does not require the return-to-duty process.
WHAT IS A REFUSAL TO TEST?

When notified of a drug and/or alcohol test, certain actions on the part

of your driver are considered a refusal to test, such as:

Not immediately going to the testing site when instructed;

Not remaining at the testing site until the process is completed;

Failing to provide a specimen for testing without an acceptable

medical explanation;

Refusing to sign an alcohol testing form; and

Failing to cooperate with any part of the testing process.

In the instance of a DOT pre-employment test, a refusal only occurs

once the testing procedures commence. For instance, if an applicant

does not show up for an appointment or leaves the collection site

before being called in for the test, it is not a refusal to test.

WHAT ARE THE CONSEQUENCES OF VIOLATING DOT TESTING

RULES?

There are serious consequences faced by a driver who refuses to test,

fails an alcohol test, or has a positive, adulterated, or substituted drug

test result.

A driver who violates testing rules:

Must be removed from all safety-sensitive functions.

May not return to a safety-sensitive function until:

1. An evaluation by a substance abuse professional (SAP) has been

done,

2. The driver has complied with prescribed treatment, and

3. He or she passes a return-to-duty test.

Is subject to at least six follow-up tests in the first 12 months after

returning to duty and may be subject to follow-up testing for up to a

total of five years.

Record of the violation under Part 382 is reported to the CDL Drug and

Alcohol Clearinghouse by the medical review officer or employer

depending on the circumstances.

WHAT IS ACTUAL KNOWLEDGE?

Actual knowledge of a DOT drug or alcohol violation occurs when you:

Directly observe your employee engaging in prohibited activity (e.g.,

drinking on the job);

Are provided information by your driver’s previous employer(s) (e.g.,

DOT testing history/Safety Performance History);

 Learn of a traffic citation for driving a CMV while under the influence of

alcohol or controlled substances; or

Receive an employee’s admission of alcohol or controlled substance

use, unless provided under a voluntary self-identification program.

Direct observation for purposes of actual knowledge is not the same as

observing an employee’s behavior or physical characteristics in order to

send a driver for a reasonable suspicion test.

When you have actual knowledge that one of your CDL Drivers who fail
drivers violated DOT testing rules, you must treat this
or refuse a drug
as you would a positive result.
or alcohol test
When you have actual knowledge that one of your CDL drivers violated DOT must be
testing rules, you must treat this as you would a positive result. You must
removed from
safety-sensitive
remove the driver from a safety-sensitive function until there is

documentation that the driver has completed the necessary steps of the

return-to-duty process. You, the employer, must report the actual functions.
knowledge to the CDL Drug and Alcohol Clearinghouse by the close of the

third business day following the date on which they learn of the violation.

STAFF TRAINING
DOES PART 382 REQUIRE DRIVER TRAINING?

Yes. You are required to provide drivers in a safety-sensitive position with a

copy of educational materials that explain DOT testing requirements. This

information must be issued to the driver prior to testing. You must obtain a

signed receipt from the driver to acknowledge that he or she received the

materials.

The elements that must be provided to the driver, in accordance with

Section 382.601, include:

1. The name of the person designated by your company to answer driver

questions about the materials;

2. The categories of drivers who are subject to the provisions of Part 382;

3. Sufficient information about the safety-sensitive functions performed by

those drivers to make clear what period of the workday the driver is

required to be in compliance with Part 382;

4. Specific information concerning driver conduct that is prohibited;

5. The circumstances under which a driver will be tested for alcohol

and/or drugs under Part 382;

6. The procedures that will be used to:

Test for the presence of alcohol and drugs,

Protect the driver and the integrity of the testing processes,

Safeguard the validity of the test results, and

Ensure that those results are attributed to the correct driver;

7. The requirement that a driver submit to alcohol and drug tests administered in

accordance with Part 382;

8. An explanation of what constitutes a refusal to submit to an alcohol or controlled

substances test and the attendant consequences;

9. The consequences for drivers found to have violated testing rules (Subpart B to Part

382), including the requirement that the driver be removed immediately from safety-

sensitive functions, and the procedures under Section 382.605;

10. The consequences for drivers found to have an alcohol concentration of 0.02 or

greater but less than 0.04;

11. Information concerning:

The effects of alcohol and drug use on an individual’s health, work, and personal

life;

Signs and symptoms of an alcohol or drug problem (the driver’s or a co worker’s);

and

Available methods of intervening when an alcohol or drug problem is suspected,

including confrontation, referral to any employee assistance program, and/or

referral to management.

12. Information collected and maintained under Part 382 reported to the CDL Drug

and Alcohol Clearinghouse:

A verified positive, adulterated, or substituted drug test result;

An alcohol confirmation test with a concentration of 0.04 or higher;

A refusal to submit to any test required under Part 382;

§
An employer’s report of actual knowledge, as defined in 382.107:

On duty alcohol use pursuant to §382.205;

Pre-duty alcohol use pursuant to §382.207;
Alcohol use following an accident §382.209;
Controlled substance use pursuant §382.213;
A substance abuse professional report of the successful completion of the return-

to-duty process;

A negative return-to-duty test; and

An employer’s report of completion of follow-up testing.

If you have any policies under your own authority (e.g., zero tolerance,

optional retests), these provisions must be communicated at this time. A Supervisors

best practice is to blend the DOT elements with your company policy,

providing your drivers with one large document.

must undergo
at least 60
Many companies provide their drivers with an actual training curriculum

through a class, video presentation, or online training. This is to ensure the

minutes of both
driver goes through the required content. It also demonstrates due alcohol misuse
diligence and counters any claims of negligent entrustment in the event

your driver is involved in a serious crash.

and drug use
training.
WHAT DOES SUPERVISOR TRAINING ENTAIL? In order to request a DOT

reasonable suspicion test, the supervisor must have at least 60 minutes of

training on alcohol misuse and another 60 minutes of training on drug

use. This is based on Section 382.603.

The medium by which you accomplish training is not specified. For

example, your supervisor training may be accomplished through

classroom, online, videos, etc.

Through this training, the designated supervisor is given the tools to

identify a driver who is under the influence. He or she is also trained on

DOT protocols in order to request the test type and document the

rationale behind the test (see Section 382.307).

PROGRAM MANAGEMENT
WHAT IS A DER?

The Designated Employer Representative (DER) is a company employee

who is identified as a point of contact for service providers — lab,

medical review officer (MRO), collection sites, consortium/third-party

administrator, substance abuse professionals, and so forth. This employee

receives official communications and takes necessary actions.

In most instances, your DER learns of negative or canceled tests. But the

DER has been given authority by your company — in the event of a testing

violation — to remove your drivers from a safety-sensitive function and

handle the return-to-duty process steps. The DER may also be instructed

by the MRO to request a retest or contact the driver in instances when he

or she has been unsuccessful. These duties are all found in Part 40
WHAT RECORDS DOES THE MOTOR CARRIER RETAIN AND FOR HOW

LONG?

Based on Section 382.401, FMCSA requires the following

recordkeeping for DOT drug and alcohol testing:

In addition, under the CDL Drug and Alcohol Clearinghouse requirements,

employer must retain the results of the limited and annual queries for three

years. A driver's consent for a limited query is also kept for three years.

Records must be in a secured location with controlled access.

CONCLUSION

Managing a DOT testing program involves a variety of tasks, often

performed collectively by multiple individuals at the company.

Employees and/or managers involved with the implementation of your

program must know their roles; the safety regulations; and company-

specific policies. If someone does not know the requirements or lets testing

slide, you have a greater risk of an impaired driver. A risk that is best not

taken.

WE’RE HERE TO HELP

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through many years of providing high-quality all kinds of services for

trucking companies.

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Copyright © 2021 AITIM Consulting Agency, Inc. All rights reserved.