FMCSA/CDL DRUG TESTING Randle Cliff Beach, MD

FMCSA/DOT Drug Testing Locations Randle Cliff Beach, MD

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The Federal Motor Carriers Safety Administration was a result of the Carrier Safety Improvement Act of 1999. The passing of this act created FMCSA, which on January 1, 2000, established the FMCSA was as a separate operating division within the United States Department of Transportation (DOT).

The FMCSA is headquartered in Washington, DC, and with a staff of more than 1,000 people in all 50 States and the District of Columbia and is the Federal Agency taking the initiative for regulating, providing safety and oversight of commercial motor vehicles (CMVs), improving the safety of commercial motor vehicles (CMV) and saving lives.

FMCSA Mission

• Reduce crashes,
• Reduce injuries, and
• Reduce fatalities involving large trucks and buses.

What CDL Drivers Need to Know

In 1991, the United States Congress passed the Omnibus Transpiration Employee Testing Act, which required DOT agencies to implement drug and alcohol testing for all safety-sensitive transportation employees. Congress recognized the need for a drug and alcohol-free transportation industry, and thus 49 CFR Part 40, commonly referred to as Part 40 was established as a DOT-wide regulation that provides guidance on:

• Who is subject to testing
• How to conduct testing and
• How to return employees to safety-sensitive duties after they violate a DOT drug and alcohol regulation.

49 CFR Part 40 provides guidance on all DOT-required drug and alcohol testing, regardless of the mode of transportation. For example, whether you are an airline pilot covered by FAA rules or a driver for a trucking company covered by FMCSA rules, Part 40 outlines the specific procedures for collection, testing of specimens and reporting of test results. Each DOT Agency-specific regulation defines who is subject to testing, when and in what situations for a particular that specific transportation industry.

The Federal Motor Carrier Safety Administration (FMCSA) and 49 CFR Part 40 has defined drug and alcohol testing rules and regulations for employees who drive commercial trucks and buses that require a commercial driver's license (CDL). These regulations identify who is subject to testing, when they are tested and in what situations. The regulations also require privacy protections and restrictions on employers and service agents against the use and release of sensitive drug and alcohol testing information.

On January 6, 2020, the DMCSA Drug and Alcohol Clearinghouse House took effect. All FMCSA Employers to include owner-operators have specific requirements to comply with the Clearinghouse rule. Listed below is a summary of clearinghouse requirements.

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How will employers use the FMCSA Clearinghouse?

• Report drug and alcohol violations. This will include alcohol test results with a concentration of .04 or greater, refusals to take an alcohol or drug test, as well as actual knowledge of a violation.
• Employers will also report negative return-to-duty (RTD) test results and the successful completion of a driver's follow-up testing plan.

** Please note that the information above must be reported by the close of the third business day after the employer is informed

• Conduct pre-employment queries to check if prospective employees are prohibited from performing safety-sensitive functions, such as operating CMVs, due to an unresolved drug and alcohol program violation.

** Employers are also required to conduct queries on all current employees at least annually. All queries require driver consent.

• Until January 6, 2023 employers must conduct both electronic queries in the Clearinghouse and manual, offline inquiries to previous employers for pre-employment driver investigations.

How will Owner-Operators Use The Clearinghouse?

Beginning January 6, 2020 owner-operators will need to coordinate with their C/TPA(s) to ensure the following requirements are met.

• Report drug and alcohol violations. This will include alcohol test results with a concentration of .04 or greater, refusals to take an alcohol or drug test, as well as actual knowledge of a violation
• Employers will also report negative return-to-duty (RTD) test results and the successful completion of a driver's follow-up testing plan.

** Owner-operators or C/TPAs may report violation information about other drivers employed by the owner-operator. If an owner operator commits a drug and alcohol program violation, this information MUST BE reported by the C/TPA

** Please note that the information above must be reported by the close of the third business day after the employer or C/TPA is informed.

• Conduct pre-employment queries to check if prospective employees are prohibited from performing safety-sensitive functions, such as operating CMVs, due to an unresolved drug and alcohol program violation.

** Employers are also required to conduct queries on all current employees at least annually. All queries require driver consent.

• Until January 6, 2023 employers must conduct both electronic queries in the Clearinghouse and manual, offline inquiries to previous employers for pre-employment driver investigations.

For more information or to select ADT as your C/TPA click here to learn more about the clearinghouse services we offer

Who is covered under FMCSA DOT Drug and Alcohol Testing Regulations?

FEDERAL MOTOR CARRIER SAFETY ADMIN (FMCSA) COVERED EMPLOYEES

Employees or individuals who are working on public roads meeting the following criteria are FMCSA "covered" employees.

These are employees who:

1. Have a Commercial Driver's License (CDL), or similar license issued by Mexico or Canada, and
2. Operate a Commercial Motor Vehicle (CMV) in any state:
   • a. A commercial motor vehicle (CMV) is then defined as a vehicle:
     
     • i. with a gross vehicle weight rating/gross vehicle weight or gross combination weight rating/gross combination weight of 26,001 or more lbs., or
     • ii. designed to carry 16 or more passengers (including the driver), or
     • iii. of any size that is used to transport hazardous materials which require the vehicle to be placarded

With FMCSA there is only one safety-sensitive category of covered employee which is Driver.

FMCSA and DOT Frequently Asked Questions?

Who is tested?

Typically all CDL drivers who operate commercial motor vehicles are subject to the CDL requirements on the public roadways in the United States and who are also performing safety-sensitive functions are subject to DOT drug and alcohol testing under section (§382.103). This would also include all full-time, part-time, intermittent, backup and international drivers.

When does testing occur?

The Federal Motor Carrier Safety Administration requires testing under the following conditions:

• Pre-employment testing.
• Post-accident testing.
• Random Testing
• Reasonable suspicion testing.
• Return-to-duty testing.
• §382.311 Follow-up testing.

When in an FMCSA Pre-employment test required?

The FMCSA defines a Pre-employment test as prior to the first time any driver performs safety-sensitive functions for any employer (this includes a single owner operator). Part 40 states that the driver shall undergo testing for controlled substances as a condition of employment.

Furthermore, no employer shall allow a driver to perform safety-sensitive functions unless the employer has received a negative controlled substances test result from the MRO or C/TPA indicating a verified 5 panel DOT negative test result for that driver.

Are there any exceptions to FMCSA pre-employment drug testing?

In short, yes, the following examples are permitted as exemptions to the pre-employment drug testing requirement.

An employer is not required to administer a DOT pre-employment drug testing if:

1. The driver has participated in a controlled substance testing program that meets DOT requirements within the previous 30 days: and
2. While participating in that program, either:
   
   • a. Was tested for controlled substances within the past 6 months (from the date of the application with the employer); and
   • b. Participated in a DOT random drug and alcohol testing program for the previous 12 months (from the date of application with the employer); and
3. The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of this part or the controlled substances use rule of another DOT agency within the previous six months.

As an FMCSA regulated employer and choose to utilize the above-referenced exception. Employers must contact the DOT controlled substances testing program(s) in which the driver participates or participated and shall obtain and retain from the testing program(s) the following information:

• Name and address of the drug-testing program
• Verification that the driver participates or participated in the program(s).
• Verification that the program(s) conforms to part 40 of this title.
• Verification that the driver is qualified under the rules of this part, including that the driver has not refused to be tested for controlled substances.
• The date the driver was last tested for controlled substances.
• The results of any tests taken within the previous six months and any other violations of subpart B of this part.

Does FMCSA require a pre-employment alcohol test?

The FMCSA doesn't require a pre-employment alcohol test; however, Employers may choose but are not required to, conduct pre-employment alcohol testing under this part. On the other hand, if the employer chooses to conduct pre-employment alcohol testing, it must comply with the following requirements:

1. An employer must conduct a pre-employment alcohol test before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving the performance of safety-sensitive functions).
2. Employers must treat all safety-sensitive employees performing safety-sensitive functions the same for the purpose of pre-employment alcohol testing (for example, employers must not test some covered employees and not others).
3. An employer must conduct the pre-employment alcohol tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
4. Conduct all pre-employment alcohol tests using the alcohol testing procedures outlined in 49 CFR part 40 of this title.
5. You must not allow a covered employee to begin performing safety-sensitive functions unless the result of the employee's test indicate an alcohol concentration of less than 0.04.

For more information call us today or purchase your pre-employment drug test online

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What is FMCSA Post Accident Testing?

A Post-Accident drug/alcohol test must be conducted as soon as possible following an occurrence involving a commercial motor vehicle operating on a public road in commerce and each employer shall test for alcohol for each of its surviving drivers:

1. Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
2. Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
   
   • a. Bodily injury to any person who, because of the injury, immediately receives medical treatment away from the scene of the accident; or
   • b. One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

Other scenarios triggering a post-accident drug testing include:

1. A driver who receives a citation within thirty-two hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
   
   • a. Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
   • b. One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

** The following table notes when a post-accident test is required to be conducted per DOT regulations.

Type of accident involved	Citation issued to the CMV driver	Test must be performed by the employer
i. Human fatality	YES NO	YES YES
ii. Bodily injury with immediate medical treatment away from the scene	YES NO	YES NO
iii. Disabling damage to any motor vehicle requiring tow away	YES NO	YES NO

Types of Post-Accident Tests

• 1. Alcohol tests: If an alcohol test is required by this section and is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered.
• 2. Furthermore, if an alcohol test required by this section is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. Records shall be submitted to the FMCSA upon request.
• 3. Controlled substance tests. If a test required by this section is not administered within 32 hours following the accident, the employer shall cease attempts to administer a controlled substance test and prepare and maintain on file a record stating the reasons the test was not promptly administered and records shall be submitted to the FMCSA upon request.

Any driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing. Post-accident testing would not delay any driver in receiving the proper or necessary emergency medical treatment.

What is FMCSA Random Testing?

All CDL drivers must be randomly tested throughout the year and an employer who employs only himself/herself as a driver, who is not leased to a motor carrier, shall implement a random testing program of two or more covered employees in the random testing selection pool as a member of a consortium/random testing pool.

The current rate for random drug and alcohol testing is:

50% of the average number of driver positions for Controlled Substances (5 panel DOT urine)

10% of the average number of diver positions for Breath Alcohol Testing (BAT)

How is Random Testing Conducted?

Random selections of drivers for random alcohol and controlled substances testing shall be made by a scientifically valid method. For example,

• random number table or
• a computer-based random number generator that is matched with drivers' Social Security numbers, payroll identification numbers, or other comparable identifying numbers.

Each driver that is selected for random alcohol and controlled substances testing must have an equal chance of being tested each time selections are made.

Each driver selected for testing shall be tested during the selection period.

Employers may use a service agent (e.g., a C/TPA) to perform random selections and your covered drivers may be part of a larger random testing pool (consortium) of covered employees.

Please note that it is a good idea to validate that your c/TPA is currently selecting and testing at the appropriate percentage established for your industry and that only covered employees are in the random testing pool. (Currently, FMCSA tests at a rate of 50% for drugs and 10% for alcohol). As the DER an employer must ensure that all random testing is unannounced and that testing is spread reasonably throughout the calendar year.

When a driver is notified, employers must ensure that the driver immediately proceed to the testing center.

If a driver is selected for a random alcohol test, the alcohol test must be conducted just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.

What is FMCSA Reasonable Suspicion Testing?

FMCSA Reasonable suspicion testing was established to detect if drivers appear to be under the influence of drugs or alcohol can be immediately tested. Employers must train CDL driver supervisors to detect the symptoms of driver impairment. Listed below is a summary of the FMCSA Supervisor training requirements. Click here to purchase your supervisor training course.

When Does Reasonable Suspicion, Testing Occur?

Any driver/safety sensitive regulated employee may be required to submit for a reasonable suspicion/reasonable cause drug or alcohol testing when the employer has reasonable suspicion to believe that the employee has violated the prohibitions of subpart B of this part concerning alcohol or controlled substances.

• 1. For an employer to require the driver to undergo an alcohol and/or controlled substances test, the basis must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver and/or indications of the chronic and withdrawal effects of controlled substances.
• 2. The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with §382.603. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver.
• 3. Alcohol testing is authorized by this section only if the observations by the trained supervisor are made during, just preceding, or just after the period of the workday when the driver is on duty. A driver may be directed by the employer to only undergo reasonable suspicion testing while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.
  
  • if an alcohol test is required, it must be administered within two hours following the determination that the employee was believed to be under the influence of alcohol. The employer must prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered within the 2-hour requirement.
  • If an alcohol test required by this section and is not administered within eight hours following the determination, an employer shall stop any attempts to administer an alcohol test and shall state in the record the reasons for not administering the test within the required 8 hours.

Drivers are prohibited for from reporting for duty or remaining on duty requiring the performance of safety-sensitive functions while the driver is under the influence of or impaired by alcohol, which can be determined by the behavioral, speech, and performance indicators of alcohol misuse. Employers must not permit the driver to perform or continue to perform safety-sensitive functions, until:

A driver may not return to performing safety sensitive function until an alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or

• 24 hours have passed following the reasonable suspicion determination was made with regards to alcohol.

All observations must be documented which lead to a reasonable suspicion drug/alcohol test and must be signed within 24 hours by the trained supervisor who observed the behavior.

What is Supervisor Training?

49 CFR 382.603 is the FMCSA regulation that requires supervisors of commercial motor vehicle drivers who operate vehicles requiring a CDL to:

• 1. Take 60 minutes of training on the symptoms of alcohol abuse and
• 2. 60 minutes of training on the symptoms of controlled substances use (120 minutes in total).

The goal of this training is to educate and assist supervisors in identifying circumstances and indicators that may create reasonable suspicion that a driver is using or under the influence of alcohol or drugs, supporting referral of an employee for testing.

** If you operate vehicles that require a CDL on the public roads and you have more than one employee in the company, you are required to get DOT Supervisor Training. To verify if you are subject to the drug and alcohol regulations, please visit http://www.dot.gov/odapc/am-i-covered

• 3. Owner-operators are not subject to DOT supervisor training. However, you are still required to register with a consortium for DOT drug and alcohol testing.

DOT Drug & Alcohol Supervisor Training Guidance Flow Chart- Click Here

If you need to be trained and certified for FMCSA required reasonable suspicion training, click here to register today

What is Return to Duty Testing?

A return-to-duty drug or alcohol test is required for all drivers who:

• i. Test positive,
• ii. Refuse to submit to a drug/alcohol test; or
• iii. Violated any of the prohibitions of 49 CFR Part 382 Subpart B; and
• iv. An individual who has completed the return-to-duty process with a DOT-qualified substance abuse professional.

All DOT return to duty drug tests are directly observed, and a negative result is required before resuming any safety sensitive duties.

** The requirements for return-to-duty testing must be performed in accordance with 49 CFR part 40, subpart O.

What is Subpart O?

Subpart O refers to the Substance Abuse Professionals (SAP) and the Return-to-Duty Process

Who is qualified to be a SAP?

Under DOT regulations, an individual is permitted to act as a SAP in the DOT drug and alcohol testing program, if you must meet each of the requirements of this section:

SAP's must have the following Credentials:

1. You are a licensed physician (Doctor of Medicine or Osteopathy);

2. You are a licensed or certified social worker;

3. You are a licensed or certified psychologist;

4. You are a licensed or certified employee assistance professional;

5. You are a state-licensed or certified marriage and family therapist; or

6. You are a drug and alcohol counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC); or

7. by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC); or by the National Board for Certified Counselors, Inc. and Affiliates/Master Addictions Counselor (NBCC).

When is a SAP evaluation required?

A SAP is required when any safety "sensitive employee" violates any DOT drug and alcohol regulations. Once the violation has occurred, the employee must not perform any DOT safety-sensitive duties for any employer until he/she has completed the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations.

What is a violation of DOT Drug and Alcohol Regulations?

• 1. A verified positive DOT drug test result,
• 2. a DOT breath alcohol test with a result indicating an alcohol concentration of 0.04% or greater,
• 3. a refusal to test (including by adulterating or substituting a urine specimen) or
• 4. any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation.

What is the SAP's function in conducting the initial evaluation of an employee?

The initial step in this process is a SAP Evaluation. During the evaluation process all SAP's must conduct the following.

• 1. Provide a comprehensive face-to-face assessment and clinical evaluation.
• 2. Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.
  
  • a. This recommended education and treatment must be made for every individual who has violated a DOT drug and alcohol regulation.
  • b. A SAP must make a recommendation for education and/or treatment that will, to the greatest extent possible, protect public safety in the event that the employee returns to the performance of safety-sensitive functions.
  • c. Appropriate education may include, but is not limited to, self-help groups (e.g., Alcoholics Anonymous) and community lectures, where attendance can be independently verified, and bona fide drug and alcohol education courses.
  • d. Appropriate treatment may include, but is not limited to, in-patient hospitalization, partial in-patient treatment, out-patient counseling programs, and aftercare.
  • e. A SAP must also provide a written report directly to the DER highlighting your specific recommendations for assistance and treatment.
  • f. As a SAP, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation.
• 3. Substance Abuse Professionals must not take into consideration in any way, as a factor in determining what your recommendation will be, any of the following:
  
  • a. A claim by the employee that the test was unjustified or inaccurate.
  • b. Statements by the employee that attempt to mitigate the seriousness of a violation of a DOT drug or alcohol regulation (e.g., related to assertions of use of hemp oil, "medical marijuana" use, "contact positives," poppy seed ingestion, job stress); or
  • c. Personal opinions you may have about the justification or rationale for drug and alcohol testing.
  • d. In the course of gathering information for purposes of your evaluation in the case of a drug-related violation, you may consult with the MRO. MRO's are required to cooperate with the SAP and provide available information the SAP requests. It is not necessary to obtain the consent of the employee to provide this information.

How does the return-to-duty process conclude?

If you are an employer and you wish to permit the employee to return to performing of safety-sensitive functions, you must ensure that the employee takes a return-to-duty test. This test cannot occur until after the SAP has determined that the employee has successfully complied with the prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming the performance of safety-sensitive duties.

An SAP or MRO must not make a "fitness for duty" determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer's responsibility to decide whether to put the employee back to work in a safety-sensitive position.

What is Follow-up Testing?

Follow-up testing is required for CDL drivers who have:

• 1. Tested positive,
• 2. Refused to test, or
• 3. Otherwise violated the prohibitions of 49 CFR Part 382 Subpart B; and
• 4. Who has completed the return-to-duty process with a DOT-qualified substance abuse professional, and
• 5. Have tested negative for a return-to-duty test.

Follow up testing is prescribed by the substance abuse professional (SAP) and administered by the DER for a minimum of 6 directly observed tests in 12 months but can be extended an additional four years.BLOG

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