Introduction
The United States Department of Transportation mandates drug and evidential breath alcohol testing for employees in safety-sensitive positions, including those who are required to hold a commercial driver’s license as set forth in 49 CFR Part 382 and 49 CFR Part 40.
This section sets forth COMPANY’s alcohol and drug testing program and the testing and reporting requirements as required by those regulations, and to help prevent accidents and injuries caused by the use of controlled substances and/or misuse of alcohol. It applies to all COMPANY’s employees who are required to have and maintain a commercial driver’s license (CDL) in order to perform the duties of his or her job.
You are notified that under 49 CFR Part 391.11, has the final authority to make fitness for duty disqualification determinations for its FMCSA Drivers. The ability to operate in a constant state of alertness, and safe manner when even a momentary lapse of attention can have disastrous consequences is an essential job duty for positions requiring a commercial driver’s license. It is also an essential job duty that the employee qualifies as a commercial driver pursuant to both DOT regulations and company policies.
If You Have Questions
The person designated by to answer driver’s questions about this material is DER NAME(S). If this person is not available, you may contact any supervisor or manager.
Application
The person designated by to answer driver’s questions about this material is DER NAME(S). If this person is not available, you may contact any supervisor or manager.
Definitions
Actual knowledge for the purpose of subpart B of this part, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer's direct observation of the employee, information provided by the driver's previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee's admission of alcohol or controlled substance use, except as provided in 49 CFR382.121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under 49 CFR382.307.
Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
Alcohol concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test under this part.
Alcohol use means the ingestion of any beverage, liquid mixture or preparation (including any medication), containing alcohol.
Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle
(1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
(2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) 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 (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
Confirmation (or confirmatory) drug test means a second analytical procedure performed on a urine or saliva specimen to identify and quantify the presence of a specific drug or drug metabolite.
Confirmation (or confirmatory) validity test means a second test performed on a urine or saliva specimen to further support a validity test result.
Confirmed drug test means a confirmation test result received by an MRO from a laboratory.
Controlled substances mean those substances identified in 49 CFR40.85 of this title.
Designated employer representative (DER) is an individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the company. Service agents cannot serve as DERs.
Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.
(1) Inclusions. Damage to motor vehicles that could have been driven, but would have been further damaged if so driven.
(2) Exclusions. (i) Damage which can be remedied temporarily at the scene of the accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is available.
(iii) Headlight or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers which make them inoperative.
Driver means 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.
Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in this part, means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part.
Licensed medical practitioner means a person who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local, or foreign laws and regulations, to prescribe controlled substances and other drugs.
Negative return-to-duty test result means a return-to-duty test with a negative drug result and/or an alcohol test with an alcohol concentration of less than 0.02, as described in 49 CFR Part 40.305 of this title.
Performing (a safety-sensitive function) means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
Refuse to submit (to an alcohol or controlled substances test) means that a driver:
(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see 49 CFR Part 40.61(a) of this title);
(2) Fail to remain at the testing site until the testing process is complete. Provided, that an employee who leaves the testing site before the testing process commences (see 49 CFR Part 40.63(c) of this title) a pre-employment test is not deemed to have refused to test;
(3) Fail to provide a urine or saliva specimen for any drug test required by this part or DOT agency regulations. Provided, that an employee who does not provide a urine or saliva specimen because he or she has left the testing site before the testing process commences (see 49 CFR Part 40.63(c) of this title) for a pre-employment test is not deemed to have refused to test;
(4) In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen (see 49 CFR Part 40.67(l) and 40.69(g) of this title);
(5) Fail to provide a sufficient amount of urine or saliva when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see 49 CFR Part 40.193(d)(2) of this title);
(6) Fail or declines to take a second test the employer or collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under 49 CFR Part 40.193(d) of this title. In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;
(8) Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process); or
(9) Is reported by the MRO as having a verified adulterated or substituted test result.
Safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include:
(1) All time at an employer 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;
(2) All time inspecting equipment as required by 49 CFR Part 392.7 and 392.8 of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of 49 CFR393.76 of this subchapter);
(5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
Screening test (or initial test) means:
(1) In drug testing, a test to eliminate “negative” urine or saliva specimens from further analysis or to identify a specimen that requires additional testing for the presence of drugs.
(2) In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
Effective Date
COMPANY’s Employee Drug and Alcohol Abuse Policy is effective immediately.
Prohibited Conduct
The following conduct regarding alcohol and drug use or abuse is prohibited:
A. Alcohol Concentration.
An employee may not report for duty or remain on duty requiring the performance of duties covered under this policy while having an alcohol concentration of 0.02 or greater.
B. Alcohol Possession and On Duty Use of Alcohol.
An employee may not possess or use alcohol while on duty or while operating a commercial motor vehicle.
C. Pre-Duty Use of Alcohol.
An employee may not operate a commercial motor vehicle within four hours after using alcohol. An on-call employee who consumes alcohol within four hours of being called in will acknowledge the use of alcohol and will not report for duty.
D. Alcohol Use Following an Accident.
An employee required to take a post-accident alcohol test may not use alcohol for eight hours following the accident, or until a post-accident alcohol test is given, whichever comes first.
E. Use of Drugs.
An employee may not report for duty or remain on duty when the employee has used any controlled substance, except when the use is pursuant to instructions of a physician who has advised the employee that the substance does not adversely affect the employee’s ability to safely operate a commercial motor vehicle. The ability to operate in a constant state of alertness, and safe manner is an essential job duty.
Employees who are taking a prescription or over-the-counter medication that may impair their ability to perform their duties safely and effectively must notify their supervisor and should provide written notice from their physician or pharmacist with respect to the effects of such substances.
Although some state laws permit the use of marijuana it remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana, marijuana products, or have detectable levels of THC in their body.
F. Refusal to Submit to a Required Test.
An employee may not refuse to submit to a post-accident, random, reasonable suspicion, follow-up or other required alcohol or drug test as directed by this policy.
G. Positive Drug Test.
An employee may not report for duty or remain on duty requiring the performance of duties covered under this policy if the employee tests or may test positive for drugs or alcohol.
H. Tampering with a Required Test.
An employee may not tamper with, adulterate, alter, substitute or otherwise obstruct the testing process.
I. Possession, Transfer or Sale.
No employee may possess, transfer or sell drugs or alcohol while in any position covered by this policy.
Circumstances Requiring Testing
A. Pre-employment Drug Testing.
All individuals who are covered by this policy must pass a drug test as a post-offer condition of employment and before performing safety-sensitive functions.
B. Reasonable Suspicion Testing.
Employees subject to this policy shall submit to a drug or alcohol test when reasonably suspected that this policy (except the prohibitions against possession, transfer or sale of alcohol) may have been or is presently being violated. A referral for testing will be made on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances. Such referrals will be made by supervisory personnel who have received training concerning the signs and symptoms of drug and alcohol use. Both an alcohol and drug test will be performed in a reasonable suspicion testing situation as soon as possible.
If a test is not administered within two hours following the reasonable suspicion determination, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If an alcohol test is not administered within eight hours following the reasonable suspicion incident, the employer shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. There is no time limit on completing a reasonable suspicion drug test.
If removed from duty based on reasonable suspicion of drug use, the employee will not be allowed to perform or continue to perform the job duties until the test results are returned and indicate a negative result.
Observations concerning alcohol testing are made only during, just preceding, or just after the period of the workday that the driver is required to be in compliance with alcohol prohibitions.
If removed from duty based on reasonable suspicion of alcohol use, the employee will not be allowed to perform or continue to perform covered functions until:
- An alcohol test is administered and the driver’s breath alcohol concentration measures less than 0.02; or
- 24 hours have elapsed following the determination that there is reasonable suspicion to believe that the employee has violated this policy concerning the use of alcohol.
C. Post-Accident Testing
Following an accident involving a commercial motor vehicle, the driver is required to submit to alcohol and drug tests when a fatality occurs as a result of the accident or when the driver receives a citation under state or local law for a moving traffic violation arising from the accident if the accident involved:
- Bodily injury to any person who, as a result of the injury immediately receives medical treatment away from the scene of the accident; and/or
- One or more vehicles incurred disabling damage required removal by towing.
Post-accident testing shall occur as soon as possible, but shall not exceed eight hours for alcohol testing and 32 hours for drug testing.
No alcohol test or drug specimen should be taken before the administration of necessary first aid and/or other appropriate medical care. A driver must make every reasonable effort to notify management as soon as possible whenever an accident has occurred.
A driver who is subject to post-accident testing shall remain readily available for such testing and may not take any action to interfere with testing or the results of testing. Drivers who do not comply with post-accident testing requirements will be considered to have refused to submit to testing and will be subject to sanctions for refusal to test as provided in this policy.
D. Random Testing
Employees covered by this policy will be subject to random, unannounced drug and/or alcohol testing at the percentage rates set annually by FMCSA and posted by the Office of Drug and Alcohol Policy & Compliance (ODAPC).
E. Return to Duty Testing
Employees who have violated this policy, including those who have tested positive on a drug or alcohol test, and who under the discipline policy are allowed to return to work, must test negative prior to being released for duty. A return to duty test following alcohol misuse may not exceed an alcohol concentration of 0.02.
Return to Duty Testing costs will be borne by the driver.
F. Follow-up Testing
An employee who is referred for assistance related to alcohol misuse and/or use of controlled substances is subject to unannounced follow-up testing as directed by a Substance Abuse Professional. The number and frequency of follow-up testing will be determined by the Substance Abuse Professional, but will not be less than six tests in the first 12 months following the employee’s return to duty.
Follow-up Testing costs will be borne by the driver.
G. Re-tests – Split Testing
Employees who test positive for drugs may request a second test of the remaining portion of the split sample within 72 hours of notification of a positive test result by the Medical Review Officer.
The cost of the split test is $250. The driver agrees to reimburse the company for the cost of a confirmed positive split test.
Testing Procedures & Safeguards
will follow the collection and drug testing guidelines issued by the U.S. Department of Transportation. Alcohol testing will be conducted using Evidential Breath Testing (EBT) instruments approved by the National Highway Transportation and Safety Administration (NHTSA) following procedures approved by the U.S. Department of Transportation as outlined in 49 CFR Part 40 Subpart L.
The following employee protections will be incorporated to ensure the accuracy and integrity of the drug testing program:
Only Substance Abuse and Mental Health Services Administration (SAMHSA) certified drug testing laboratories will be used.
A strict chain of custody will be used to ensure the integrity of each specimen.
The process will ensure individual privacy during the collection process and confidentiality of test results.
All “positive” drug screens will be confirmed by a second test using the gas chromatography/mass spectrometry method or an equivalent approved method.
All drug test results will receive a professional review by a medical review officer (MRO) that includes offering the employee the opportunity to explain or contest a positive test result.
Refusal to Take an Alcohol or Drug Test
No employee shall refuse to submit to an alcohol or drug test as directed under this policy. A refusal (see definitions) to submit shall include, but is not limited to:
- a failure to provide adequate breath for testing without a valid medical explanation after an employee has received notice of the requirement for breath testing;
- failure to provide adequate specimen for drug testing without a valid medical explanation after an employee has received notice of the requirement for testing;
- engaging in conduct that obstructs the testing process or submitting an adulterated or substituted specimen;
- failure to cooperate with a direct observation collection when required by the regulations;
- possessing or wearing a prosthetic or other device that could be used to interfere with the collection process;
- admitting to the collector or MRO that he/she adulterated or substituted the specimen.
Refusal to submit to a test shall be considered the same as a positive test result.
Securing Drug or Alcohol Violation Records from the Clearinghouse
As required by 49 CFR Part 382.701, will conduct a full pre-employment query as well as annual limited queries during the term of employment of the driver’s records for the past three (3) years through the FMCSA Drug and Alcohol Clearinghouse (Clearinghouse). These records include:
(1) A verified positive, adulterated, or substituted controlled substances test result;
(2) An alcohol confirmation test with a concentration of 0.04 or higher;
(3) A refusal to submit to a required drug or alcohol test
(4) An employer's report of actual knowledge of:
(i) On duty alcohol use
(ii) Pre-duty alcohol use
(iii) Alcohol use following an accident
(iv) Controlled substance use
(5) A SAP report of the successful completion of the return-to-duty process;
(6) A negative return-to-duty test; and
(7) An employer's report of completion of follow-up testing.
A full query requires the electronic consent of the driver through the Clearinghouse in order to be completed. If a driver refuses to provide such consent, a query will not be completed and the driver will not be eligible to perform safety sensitive duties for the company.
Annual limited queries of the Clearinghouse during the entire term of employment with COMPANY will be performed with written consent of the driver. Should a limited query produce a record for review, the employer must conduct a full query requiring the electronic consent of the driver through the Clearinghouse.
Reporting Violations To The FMCSA Drug & Alcohol Clearinghouse
The FMCSA has established a mandatory database of drug and alcohol violations by commercial motor vehicle operators. The following personal information collected and maintained under this part shall be reported to the Clearinghouse:
(1) A verified positive, adulterated, or substituted drug test result;
(2) An alcohol confirmation test with a concentration of 0.04 or higher;
(3) A refusal to submit to any test required by subpart C of this part;
(4) An employer’s report of actual knowledge, as defined at 49 CFR Part 382.107:
(5) On duty alcohol use pursuant to 49 CFR Part 382.205;
(6) Pre-duty alcohol use pursuant to 49 CFR Part 382.207;
(7) Alcohol use following an accident pursuant to 49 CFR Part 382.209; and
(8) Controlled substance use pursuant to 49 CFR Part 382.213;
(9) A substance abuse professional (SAP) report of the successful completion of the return-to-duty process;
(10) A negative return-to-duty test; and
(11) An employer’s report of completion of follow-up testing
Confidentiality and Record Retention
Each driver subject to the DOT controlled substances and alcohol testing requirements who has violated the alcohol and controlled substances prohibitions under 49 CFR part 40 or part 382 without complying with the requirements of part 40, subpart O (SAP return to duty requirements) must notify in writing all current employers of such violation(s). The driver is not required to provide notification to the employer that administered the test or documented the circumstances that gave rise to the violation. The notification must be made before the end of the business day following the day the employee received notice of the violation, or prior to performing any safety-sensitive function, whichever comes first.
Notification to employers of a controlled substances or alcohol testing program violation
All records related to drug and alcohol testing shall be maintained in a secure location with controlled access. These records shall be kept separate from records pertaining to all other employees.
Consequences of Engaging in Prohibited Conduct or Positive Drug or Alcohol Tests
A. Discipline.
An employee will be subject to appropriate disciplinary action up to and including termination from employment if:
- the employee tests positive for a drug or drugs;
- results from an alcohol test indicate a blood alcohol level of 0.02 or greater; and/or,
- the employee has engaged in prohibited conduct as outlined in the Prohibited Conduct Section.
The following provisions apply to those employees who are not terminated for their policy violations:
B. Positive Test Result.
If an employee tests positive for drugs or has an alcohol test that indicates a blood alcohol level of .04 or greater from a random, reasonable suspicion, post-accident test or other required test, the employee will be immediately removed from duties requiring the driving of a commercial motor vehicle. The employee shall not be permitted to return to work until he/she:
- has been evaluated by a DOT qualified Substance Abuse Professional; and,
- if recommended by a substance abuse counselor, has properly followed any rehabilitation prescribed; and,
- has a verified negative result on a return-to-duty alcohol (<0.02) and/or drug test (depending upon which test was failed).
Upon completion of a recommended rehabilitation program and successful return to duty test, an employee will be subject to follow-up testing for up to sixty (60) months as recommended by the Substance Abuse Professional, with a minimum of six such unscheduled tests within the first twelve months of returning to duty.
C. Alcohol Concentration of 0.02 but less than 0.04.
If not terminated or otherwise disciplined, employees having a breath alcohol concentration of at least 0.02 but less than 0.04, shall be removed from duty requiring the driving of a commercial motor vehicle for at least 24 hours.
Employee Assistance Program and Referral
It is the responsibility of all employees to notify management when an alcohol or a controlled substance problem is suspected in any driver or co-worker.
A confidential Employee Assistance Program (EAP) is not currently available to employees. Employees are encouraged to seek treatment voluntarily and to seek out qualified treatment professionals. Any such program or enrollment in a program, however, can not interfere with the tests required by these rules. For example, a driver could not identify himself/herself as unfit to drive after having been notified of a random or reasonable suspicion test and expect to avoid the consequences for a positive test or a refusal to test.
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