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Drug & Alcohol Trucking Regulations

Prevention of Drug and Alcohol Trucking Accidents

In an effort to prevent DUII trucking accidents and achieve an alcohol and drug-free transportation system, the Department of Transportation (DOT) in conjunction with the Federal Motor Carrier Safety Administration (FMCSA, enacted rules and regulations that specifically apply to most commercial motor carriers. While it is unlawful for any person to operate a motor vehicle while under the influence of intoxicants, the federal trucking rules on drugs and alcohol contain requirements specific to commercial carriers, employers, and operators. Generally, these trucking regulations prescribe testing requirements and administrative procedures for motor carriers. For more information on trucking accident related information see our other articles or the entirety of the Federal Motor Carrier Safety Regulations in Title IV.

FMCSA Drug and Alcohol Trucking Regulation Applicability

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FMCSA drug and alcohol testing rules apply to anyone who operates or employs operator/drivers of commercial motorvehicles with a commercial driver’s license (CDL) or North American equivalent. This includes motor carriers, trucking companies, any employer of truck drivers, employees performing safety-sensitive functions, and trucking operators themselves. Under the regulations, CDL carriers are subject to four testing scenarios: Pre-employment, reasonable suspicion, random drug testing, and post accident drug testing. The tests are designed to identify controlled substance including Marijuana, Cocaine, opiates (codeine based, heroin), amphetamines (meth, speed, uppers), and Phencyclidine or PCP, as well as alcohol.

The Pre-employmnet test requires a negative result before a trucking company can allow a driver to perform safety-sensitive duties. While testing for alcohol is permitted by the regulations, it is only required for drugs. If an employer or trained supervisor possess a reasonable suspicion to believe its truck driver has consumed alcohol or drugs, it is the employer’s duty to test the suspected driver.

FMCSA regulations require commercial carriers to randomly test their drivers. These tests can occur at anytime, regardless of when the driver last operated a commercial vehicle. The selection method used by the trucking company must be scientifically valid, the driver must not have advanced notice, and every driver must have an equal chance of being selected. Testing must take place immediately after the driver is notified of selection. The DOT also requires random testing. However, unlike non-DOT testing, these random tests are administered in relation to the performance of safety-sensitive activities. For example, Random DOT testing occurs immediately before driving, while driving, or immediately following driving.

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Certain circumstances mandate post-truck accident drug and alcohol testing of CDL operators. If the trucking accident results in a fatality, testing is required. Even if there is not a fatality, a CDL truck driver cited for a moving violation in connection with a truck crash that required towing of any trucking accident involved vehicle, or trucking accident requiring medical care other than at the scene is also required to test for drugs and alcohol. While alcohol testing must be administered within 8 hours, drug testing need only occur within 32 hours. Only laboratories certified under the National Laboratory Certification Program (NLCP) may conduct trucking related drug and alcohol testing.

Trucking Employer Responsibilities for Drug & Alcohol Testing

Employers are required to have a designated employer representative (DER) who is responsible for overseeing the employer’s compliance with drug and alcohol regulations. This person is responsible for removing employees from safety-sensitive duties and making decisions regarding testing and evaluation procedures. While the DER may be the trucking owner (employer) or an employee, but carriers are precluded from delegating the DER to an outside service agent. This preclusion includes independent safety consultant. However, a service-agent may be used for the actual testing procedure itself, but decision-making must remain with an employer or employee-repetitive.

When a commercial carrier hires a new driver or transfers an existing employee to a safety-sensitive positions such as commercial driver or operator, the trucking employer must inquire into the employees previous drug and alcohol testing history. This inquiry is a two-part process involving both an interview of the trucking employee and record requests from previous employers. Failure of the employer to perform this inquiry will generally result in employer liability if the trucking accident is related to drug or alcohol use of the employee.

After obtaining the employees written consent, inquiries must be made of all previous DOT regulated employers for the two years prior to application for the position. An employee who refuses consent must not be allowed to perform any safety-sensitive functions. CFR Part 40 Section 40.25.

If feasible, the information obtained from previous employers must be reviewed prior to the beginning the new safety-sensitive position. However, if this is not feasible, the employer must obtain and review the information as soon as possible. This period may not extend beyond 30 days from the date safety-sensitive duties began, absent documented good faith efforts on the part of the employer. Any and all received documentation must be retained for three years from the date the safety-sensitive duties began.

Actual inquiry beyond record requests is mandated by FMCSA regulations. Pre-employment drug and alcohol testing results are generally not kept by prospective employers when a person applies for, but does not obtain employment. The prospective employee must be asked whether they have previously tested positive or refused to test for any pre-employment safety-sensitive positions governed by DOT regulations for which they were ultimately not hired. An employee answering yes is not be allowed to begin the new position until verification of the successful completion of the return-to-duty process is provided to the employer.

Upon receipt of a verified positive drug report, or alcohol test result higher than 0.04, a trucking company or employer must immediately remove the employee from all safety-sensitive functions. If the alcohol measurement is between 0.020 and 0.039, the employer must temporarily remove the employee.  If the employee is a driver, they must not be allowed to continue driving. Emphasis is on immediately—an employer may not wait to take action until the final written report arrives. The same action must be taken with adulterated sample reports, or substituted drug test results which are considered refusals to test on the part of the employee. All are considered violations of DOT drug and alcohol regulations. Drivers in violation of DOT drug and alcohol regulations, may not return-to-duty until completing the Substance Abuse Professionals (SAP) process. SAP requires the driver complete a substance abuse evaluation, referral, and education or treatment.

FMCSA Drug and Alcohol Trucking Regulation Exemptions

Under section 49 CFR part 5, it is possible, though unlikely, that a commercial carrier apply for and receive an exemption from the drug and alcohol trucking regulations of 49 CFR Part 40. The request must be made in writing upon the Secretary of Transportation. Any such request will only be granted if the requeste documents “special or exceptional circumstances” othersise not contemplated by the rule that would make compliance imparacticable. If an exception is granted, the commercial carrier must still agree to take all steps to comly with the intent of the excepted provision.

For more information on trucking regulations and commercial trucking accident related information, please see our other articles or consider the entirety of the Title IX Federal Motor Carrier Safety Regulations.