(FMCSA) oversees an extensive testing and education program to help employers protect the public against drivers who use controlled substances and/or alcoholic beverages during their work. We will discuss the program in two parts.
Focus: The actual regulations and who is subject to the program. Nationally, drivers must comply with the following:
Commercial Motor Vehicle Definition
- .04 is the maximum blood alcohol level for persons operating a commercial motor vehicle.
- The driver cannot possess any non-manifested (listed) drugs or alcohol in his vehicle.
- No on-duty use of drugs or alcohol permitted, including avoidance of use within four hours before operation or eight hours following an automobile accident.
- Cannot refuse either a random or post-accident drug or alcohol test.
- Under the rules, a commercial motor vehicle is one that has a gross combined weight (GCW) of more than 26,000 lbs.; that is made to carry 16 or more passengers (including the driver); or that is used to transport hazardous material.
Persons Subject to Testing
- Any person who operates a commercial motor vehicle must follow regulations. Affected persons include:
- Full-time, regularly employed drivers (included self-employed operators)
- Casual, intermittent or occasional drivers
- Leased drivers
- Independent owner operator contractors who are either directly employed by or under lease to an employer who operates a commercial motor vehicle at the direction of or with the consent of an employer.
It's important that businesses be aware that any person who operates a commercial motor vehicle must comply with the program, regardless whether the person has a commercial driver's license. Further, drivers for civic organizations and churches are also subject to the program.
The regulations apply during any time that a driver is performing a safety function. Safety functions include a wide variety of tasks such as:
- While waiting to be dispatched
- During equipment inspection
- Anytime at a vehicle's controls
- During a vehicle's loading/unloading
- During a vehicle's repair
Compliance with the program involves testing for alcohol use as well as for use of marijuana, cocaine, amphetamines, PCP and opiates. Drivers are required to tell their employers when they are using any therapeutic or prescription drugs. Testing must be performed prior to offering employment, within a certain time after an accident, and at random times. Driver testing can be ordered, but only if a trained person has a reasonable suspicion that the driver is affected by drugs or alcohol. Further, testing is required of employees who are returning to the job after they have been relieved of duty due to a previous, positive test.
Focus: Penalties, training, record keeping and consequences of non-compliance.
Penalties for Failing a Drug Test - A driver who fails any alcohol or substance abuse test may face the following:
Record Keeping Requirements
- Suspension from performing any "safety functions"
- Evaluation by a "substance abuse professional"
- Extensive documentation of test results
- Retesting of the suspended driver, with passing results (alcohol test with no more than .02 blood alcohol and a negative controlled substance test) before reinstatement.
- Termination (not a regulation, but at the discretion of the employer)
- Employers must maintain complete records of their drug-testing results for at least five years. Further, an employer must keep a calendar year summary of their testing program that is subject to review by the Federal Highway Administration (FHWA).
Training Required by the Regulations -
Drivers must receive training in substance abuse avoidance and be given a manual on the company's alcohol and substance abuse policy. Manuals must be acknowledged in writing and it must be kept on file. Supervisors – employees who are authorized to order testing based on reasonable suspicion of abuse must have two hours training.
Respecting Employee Rights
- Employers should consider:
- Supervisors who order a test under reasonable suspicion should base his/her judgment upon specifics
- Before testing, the driver must be verbally notified that it is required by statute
- Only a properly trained supervisor can order a drug/alcohol test due to reasonable suspicion
- Random tests must truly be random
Any random test must be given either just before, during or after performance of a "safety function"
Required Rehabilitation Services
- Any driver who is tested by a supervisor due to suspicious behavior (regardless of test results) must be given the names, addresses and phone numbers of "substance abuse professional" counseling and treatment programs. Before reinstating an employee who has failed a drug or alcohol test, the driver must undergo evaluation, pass drug testing and be given follow-up tests.
Employers Who Use Independent Drivers
- These employers have to periodically verify that the drivers participate in an approved alcohol and controlled substance testing program. The business must secure written evidence that the drivers have been tested and have passed these tests.
Consequences of Non-compliance
- A company that fails to comply with the program may face civil and/or criminal penalties. In addition, a party that decides to sue a company because of an accident might use any evidence of violations against it.