ALCOHOL AND DRUG RULES: AN OVERVIEWThe following is a general overview of the Federal Motor Carrier SafetyAdministrations (FMCSA) alcohol and drug testing rules for personsrequired to obtain a commercial drivers license (CDL). The informationis intended to provide a general summary of the rules; it should not berelied upon to fulfill all legal requirements stipulated in the regulations.It does not contain many of the requirements or special circumstancesdetailed in the FMCSA and DOT rules. A comprehensive list of thealcohol and drug testing rules published by the FMCSA and the DOTOffice of the Secretary (OST) applicable to CDL drivers and theiremployers is available at the end of this document.
WHAT ARE THE RULES?The FMCSA regulations require alcohol and drug testing of drivers, who arerequired to have a CDL. The DOT rules include procedures for urinedrug testing and breath alcohol testing. Urine drug testing rules werefirst issued in December 1989. In 1994, the rules were amended to addbreath alcohol testing procedures. In the years following theimplementation of the drug and alcohol testing requirements, a numberof factors including changes in testing technology, and the issuance ofa number of written interpretations, required OST to review and revisethe rules. In December of 2000, OST published final rules thatincorporated these factors, as well as input from the public sector, intothe existing drug and alcohol testing regulations. In August of 2001, theFMCSA revised modal specific drug and alcohol testing regulationspublished in 49 Code of Federal Regulations Part 382 to reflect therevisions made by OST.
WHO IS AFFECTED BY THESE RULES?The FMCSA rules apply to safety-sensitive employees, who operatecommercial motor vehicles requiring a CDL.Examples of drivers and employers that are subject to these rules are (thefollowing does not represent a complete listing):Anyone who owns or leases commercial motor vehiclesAnyone who assigns drivers to operate commercial motor vehiclesFederal, State, and local governmentsFor-Hire Motor CarriersPrivate Motor CarriersCivic Organizations (Disabled Veteran Transport, Boy/Girl Scouts, etc.)Churches
WHAT ALCOHOL USE IS PROHIBITED?WHAT ALCOHOL USE IS PROHIBITED?Alcohol is a legal substance; therefore, the rules define specific prohibitedalcohol-related conduct. Performance of safety-sensitive functions isprohibited:While using alcohol.While having a breath alcohol concentration of 0.04 percent or greater asindicated by an alcohol breath test.Within four hours after using alcohol.In addition, refusing to submit to an alcohol test or using alcohol withineight hours after an accident or until tested (for drivers required to betested) are prohibited.
WHAT ALCOHOL TESTS ARE REQUIRED?The following alcohol tests are required:Post-accident - conducted after accidents on drivers whose performancecould have contributed to the accident (as determined by a citation for amoving traffic violation) and for all fatal accidents even if the driver isnot cited for a moving traffic violation.Reasonable suspicion - conducted when a trained supervisor or companyofficial observes behavior or appearance that is characteristic ofalcohol misuse.Random - conducted on a random unannounced basis just before, during,or just after performance of safety-sensitive functions.Return-to-duty and follow-up - conducted when an individual who hasviolated the prohibited alcohol conduct standards returns to performingsafety-sensitive duties. Follow-up tests are unannounced. At least 6tests must be conducted in the first 12 months after a driver returns toduty. Follow-up testing may be extended for up to 60 months followingreturn to duty.
HOW DOES RANDOM ALCOHOL TESTING WORK?Random alcohol testing must be conducted just before, during, or just aftera drivers performance of safety-sensitive duties. The driver is randomlyselected for testing from a "pool" of subject drivers. The testing datesand times are unannounced and are reasonably spread throughout theyear. Each year, the number of random tests conducted by the employermust equal at least 10% of average number of driver positions subjectto the regulations.
HOW IS ALCOHOL TESTING DONE?The rules allow for screening tests to be conducted using saliva devices or breathtesting using evidential breath testing (EBT) and non-evidential breath testingdevices approved by the National Highway Traffic Safety Administration (NHTSA).NHTSA periodically publishes a list of approved devices in the Federal Register.Two tests are required to determine if a person has a prohibited alcohol concentration. Ascreening test is conducted first. Any result less than 0.02 alcohol concentration isconsidered a "negative" test. If the alcohol concentration is 0.02 or greater, a secondconfirmation test must be conducted. The driver and the individual conducting theconfirmation breath test (called a breath alcohol technician (BAT) complete thealcohol testing form to ensure that the results are properly recorded. Theconfirmation test, if required, must be conducted using an EBT that prints out theresults, date and time, a sequential test number, and the name and serial number ofthe EBT to ensure the reliability of the results. The confirmation test resultsdetermine any actions taken.Testing procedures that ensure accuracy, reliability and confidentiality of test results areoutlined in the Part 40 rule. These procedures include training and proficiencyrequirements for the screening test technicians (STT), breath alcohol technicians(BAT), quality assurance plans for the breath testing devices (including calibrationrequirements for a suitable test location), and protection of driver test records.
WHO DOES THE TESTING?Employers are responsible for implementing and conducting the testingprograms. They may do this using their own employees or contractservices, or by joining together in a consortium that provides servicesto all member companies. Law enforcement officers will not conduct thetests as part of roadside or other inspections. However, under certaincircumstances, post-accident tests conducted by law enforcementpersonnel will be acceptable. Any individual conducting the test mustbe trained to operate the EBT and be proficient in the breath testingprocedures.
WHAT ARE THE CONSEQUENCES OF ALCOHOLMISUSE?Drivers who engage in prohibited alcohol conduct must be immediatelyremoved from safety-sensitive functions. Drivers who have engaged inalcohol misuse cannot return to safety-sensitive duties until they havebeen evaluated by a substance abuse professional and complied withany treatment recommendations to assist them with an alcoholproblem. To further safeguard transportation safety, drivers who haveany alcohol concentration (defined as 0.02 or greater) when tested justbefore, during or just after performing safety-sensitive functions mustalso be removed from performing such duties for 24 hours. If a driversbehavior or appearance suggests alcohol misuse, a reasonablesuspicion alcohol test must be conducted. If a breath test cannot beadministered, the driver must be removed from performing safety-sensitive duties for at least 24 hours.
HOW WILL EMPLOYEES KNOW ABOUT THESE NEWRULES?Employers must provide detailed information about alcohol misuse, theemployers policy, the testing requirements, and how and where driverscan get help for alcohol abuse. Supervisors of safety-sensitive driversmust attend at least one hour of training on alcohol misuse symptomsand indicators used in making determinations for reasonable suspiciontesting.
ARE EMPLOYEES ENTITLED TO REHAB?Drivers who violate the alcohol misuse rules will be referred to a substance abuseprofessional for evaluation. Any treatment or rehabilitation would be providedin accordance with the employers policy or labor/management agreements.The employer is not required under these rules to provide rehabilitation, payfor treatment, or reinstate the driver in his/her safety-sensitive position. Anyemployer who does decide to return a driver to safety-sensitive duties mustensure that the driver: 1) has been evaluated by a substance abuse professional; 2) has complied with any recommended treatment; 3) has taken a return-to-duty alcohol test (with a result less than 0.02); and 4) is subject to unannounced follow-up alcohol tests.
HOW WILL THE FMCSA KNOW IF THESE RULES AREBEING FOLLOWED?Employers are required to keep detailed records of their alcohol misuseprevention programs. The FMCSA will conduct inspections or audits ofemployers programs. Additionally, selected employers will have toprepare annual calendar year summary reports for the FMCSA. Thesereports will be used to help monitor compliance and enforcement of therules, as well as to provide data on the extent of alcohol misuse and theneed for any future program and regulatory changes.
ARE DRIVER ALCOHOL TESTING RECORDSCONFIDENTIAL?Yes. Test results and other confidential information may be released only tothe employer and the substance abuse professional. Any other releaseof this information is only with the drivers written consent. If a driverinitiates a grievance, hearing, lawsuit, or other action as a result of aviolation of these rules, the employer may release relevant informationto the decision maker.
WHAT ABOUT DRUG TESTING?The drug testing rules cover the same drivers as the alcohol testing rules.The types of tests required are: pre-employment; reasonable suspicion;post-accident; random; return-to-duty; and follow-up.
HOW IS DRUG TESTING DONE?Drug testing is conducted by analyzing a drivers urine specimen. The analysisis performed at laboratories certified and monitored by the Department ofHealth and Human Services (DHHS). The list of DHHS approved laboratoriesis published monthly in the Federal Register. The driver provides a urinespecimen in a location that affords privacy and the "collector" seals andlabels the specimen, completes a chain of custody document, and preparesthe specimen and accompanying paperwork for shipment to a drug-testinglaboratory. The specimen collection procedures and chain of custody ensurethat the specimens security; proper identification and integrity are notcompromised. The Omnibus Transportation Employee Testing Act of 1991requires that drug testing procedures for commercial motor vehicle driversinclude split specimen procedures. Each urine specimen is subdivided intotwo bottles labeled as a "primary" and a "split" specimen. Both bottles aresent to a laboratory. Only the primary specimen is opened and used for theurinalysis. The split specimen bottle remains sealed and is stored at thelaboratory. If the analysis of the primary specimen confirms the presence ofillegal, controlled substances, the driver has 72 hours to request the splitspecimen be sent to another DHHS-certified laboratory for analysis. Thissplit specimen procedure essentially provides the driver with an opportunityfor a "second opinion".
WHAT DRUGS ARE TESTED FOR?All urine specimens are analyzed for the following drugs:Marijuana (THC metabolite)CocaineAmphetaminesOpiates (including heroin)Phencyclidine (PCP)The testing is a two-stage process. First, a screening test is performed. If itis positive for one or more of the drugs, then a confirmation test isperformed for each identified drug using state-of-the-art gaschromatography/mass spectrometry (GC/MS) analysis. GC/MSconfirmation ensures that over-the-counter medications or preparationsare not reported as positive results.
WHO REVIEWS AND INTERPRETS THE LAB RESULTS?All drug test results are reviewed and interpreted by a physician (MedicalReview Officer (MRO)) before they are reported to the employer. If thelaboratory reports a positive result to the MRO, the MRO contacts thedriver (in person or by telephone) and conducts an interview todetermine if there is an alternative medical explanation for the drugsfound in the drivers urine specimen. If the driver provides appropriatedocumentation and the MRO determines that it is legitimate medical useof the prohibited drug, the drug test result is reported as negative to theemployer
WHAT DRUG USE IS PROHIBITED?The drug rules prohibit any unauthorized use of the controlled substances.Illicit use of drugs by safety-sensitive drivers is prohibited on or offduty. The FMCSA has some additional rules that prohibit the use oflegally prescribed controlled substances (such as barbiturates,amphetamines, morphine, etc.) by safety-sensitive drivers involved ininterstate commerce.
WHAT ARE THE CONSEQUENCES OF A POSITIVE DRUGTEST?A driver must be removed from safety-sensitive duty if he/she has apositive drug test result. The removal cannot take place until the MROhas interviewed the driver and determined that the positive drug testresulted from the unauthorized use of a controlled substance. A drivercannot be returned to safety-sensitive duties until he/she has beenevaluated by a substance abuse professional, has complied withrecommended rehabilitation, and has a negative result on a return-to-duty drug test. Follow-up testing to monitor the drivers continuedabstinence from drug use is also required.M.A. DeAtley has a no tolerance policy and will remove employees fromsafety-sensitive positions permanently.
HOW DOES RANDOM DRUG TESTING WORK?Employers are responsible for conducting random, unannounced drugtests. The total number conducted each year must equal at least 50% ofthe safety-sensitive drivers. Some drivers may be tested more thanonce each year; some may not be tested at all depending on the randomselection. Random testing for drugs does not have to be conducted inimmediate time proximity to performing safety-sensitive functions.Once notified of selection for testing, however, a driver must proceedimmediately to a collection site to accomplish the urine specimencollection.
ARE EMPLOYEE EDUCATION AND TRAININGREQUIRED?Employers must provide information on drug use and treatment resourcesto safety-sensitive drivers. All supervisors and officials of businesseswith safety-sensitive drivers must attend at least one hour of training onthe signs and symptoms of drug abuse. This training is necessary toassist supervisors and company officials in making appropriatedeterminations for reasonable suspicion testing.
ARE DRIVER DRUG TESTING RECORDSCONFIDENTIAL?Yes. Driver drug testing results and records are maintained under strictconfidentiality by the employer, the drug-testing laboratory, and themedical review officer. They cannot be released to others without thewritten consent of the driver. Exceptions to these confidentialityprovisions are limited to a decision maker in arbitration, litigation oradministrative proceedings arising from a positive drug test. Statisticalrecords and reports are maintained by employers and drug testinglaboratories. This information is aggregated data and is used to monitorcompliance with the rules and to assess the effectiveness of the drugtesting programs.
WHERE CAN I GET MORE INFORMATION?ACCESS TO THE FMCSA WEBSITE: www.fmcsa.dot.govFor assistance with the procedures of how to conduct an alcohol or drugtest contained in Part 40, contact:Office of the Secretary of TransportationOffice of Drug and Alcohol Program Compliance,1200 New Jersey Avenue SEWashington, D.C. 20590(202) 366-3784
Disqualification for majoroffensesTable 1 to 383.51
If a driver operates amotor vehicle and isconvicted of:For a firstconviction orrefusal to betested whileoperating aCMVFor a firstconviction orrefusal to betested whileoperating anon-CMVFor a firstconviction orrefusal to betested whileoperating aCMVtransportinghazardousmaterialsFor a secondconviction orrefusal to betested in aseparateincident of anycombination ofoffenses inthis table whileoperating aCMVFor a secondconviction orrefusal to betested in aseparateincident of anycombination ofoffenses inthis table whileoperating anon-CMV1) Being under theinfluence of alcohol asprescribed by Statelaw1 year 1 year 3 years Life Life2) Being under theinfluence of acontrolled substance 1 year 1 year 3 years Life Life3) Having an alcoholconcentration of .04 orgreater while operatinga CMV1 year N/A 3 years Life N/A4) Leaving the sceneof an accident1 year 1 year 3 years Life Life
5) Refusing to takean alcohol test asrequired by Statelaw1 year 1 year 3 years Life Life6) Using the vehicleto commit a felony 1 year 1 year 3 years Life Life7) Driving a CMVwhen a CDL isrevoked1 year N/A 3 years Life N/A8) Causing a fatality 1 year N/A 3 years Life N/A9)Using the vehiclein the commissionof a felony involvingmanufacturing,distributing, ordispensing acontrolledsubstanceLife – noteligible for 10yearreinstatementLife – noteligible for 10yearreinstatementLife – noteligible for 10yearreinstatementLife – noteligible for 10yearreinstatementLife – noteligible for 10yearreinstatement
Disqualification for SeriousTraffic ViolationsTable 2 to 383.51
If a driver operatesa motor vehicle andis convicted of:For a secondconviction of anycombination ofoffenses in thistable within a 3 yearperiod whileoperating a CMVFor a secondconviction of anycombination ofoffenses in thistable within a 3 yearperiod whileoperating a non -CMVFor a third orsubsequentconviction of anycombination ofoffenses in thistable within a 3 yearperiod whileoperating a CMVFor a third andsubsequentconviction of anycombination ofoffenses in thistable within a 3 yearperiod whileoperating a CMV1) Speedingexcessively involvingspeed of 15 mph ormore above postedspeed limit60 days 60 days 120 days 120 days2) Driving recklesslyas defined by Stateor local law60 days 60 days 120 days 120 days3) Makin improper orerratic traffic lanechanges60 days 60 days 120 days 120 days4) Following thevehicle ahead tooclosely60 days 60 days 120 days 120 days5) Violating State orlocal law relating tomotor vehicle trafficcontrol (other thanparking violation)arising in connectionwith a fatal accident60 days 60 days 120 days 120 days
6) Driving a CMVwithout obtaining aCDL60 days N/A 120 days N/A7) Driving a CMVwithout a CDL in thedriver’s possession60 days N/A 120 days N/A8) Driving a CMVwithout the properclass of CDL and/orendorsements for thespecific vehicle groupbeing operated or forthe passengers ortype of cargo beingtransported60 days N/A 120 days N/A
Disqualification for Railroad-Highway Grade CrossingOffensesTable 3 to 383.51
If a driver is convicted ofoperating a CMV inviolation of a Federal,State or local lawbecause:For a first conviction aperson required to have aCDL and a CDL holdermust be disqualified fromoperating a CMV for….For a second convictionof any combination ofoffenses in this table in aseparate incident within a3 year period….For a third conviction ofany combination ofoffenses in this table in aseparate incident within a3 year period….1) The driver is not requiredto always stop, but fails toslow down and check thetracks are clear of anapproaching trainNo less than 60 days No less than 120 days No less than 1 year2) The driver is not requiredto always stop, but fails tostop before reaching thecrossing if the tracks arenot clearNo less than 60 days No less than 120 days No less than 1 year3) The driver is alwaysrequired to stop, but fails tostop before driving ontocrossingNo less than 60 days No less than 120 days No less than 1 year4) The driver fails to havesufficient space to drivecompletely through thecrossing without stoppingNo less than 60 days No less than 120 days No less than 1 year5) The driver fails to obeytraffic control device or thedirection of enforcementofficials at the crossingNo less than 60 days No less than 120 days No less than 1 year6 )The driver fails tonegotiate a crossingbecause of insufficientundercarriage clearanceNo less than 60 days No less than 120 days No less than 1 year
Disqualification for ViolatingOut-of-Service OrdersTable 4 to 383.51
If a driver is convictedof operating a CMV inviolation of a Federal,State or local lawbecause:For a first conviction aperson required tohave a CDL and a CDLholder must bedisqualified fromoperating a CMV for….For a secondconviction of anycombination ofoffenses in this table ina separate incidentwithin a 10 yearperiod….For a third convictionof any combination ofoffenses in this table ina separate incidentwithin a 10 yearperiod….1) Violating a driver orvehicle out-of-serviceorder while transportingnon-hazardous materialsNo less than 90 days ormore than 1 yearNo less that 1 year ormore than 5 yearsNo less than 3 years ormore than 5 years2) ) Violating a driver orvehicle out-of-serviceorder while transportinghazardous materialsrequired to be placardedunder part 172, subpartF of this title, or whileoperating a vehicledesigned to transport 16or more passengers,including the driverNo less that 180 days ormore than 2 yearsNo less than 3 years ormore than 5 yearsNo less than 3 years ormore than 5 years