Navigating Federal Regulations on Drug and Alcohol Testing of Safety-Sensitive Drivers
by Erin L. Ebeler, Woods & Aitken LLP
Most states have laws that govern workplace drug and alcohol testing, including specifics like when testing is permitted or required, who pays for testing and what employers can do after a positive test. For example, Nebraska’s state drug and alcohol testing laws are fairly simple; other states (like Iowa, for example) have much more extensive requirements. However, state law is not the only consideration for some employers, including employers who employ individuals subject to the United States Department of Transportation’s (“DOT”) regulations, including individuals in safety-sensitive positions or holding commercial drivers’ licenses.
The DOT has implemented comprehensive regulations governing drug and alcohol testing for covered employees. There are regulations specific to various industries, including aviation, railroad, transit, maritime and (relevant to this article) motor carriers. Generally, all CDL drivers who operate commercial motor vehicles on public roads are considered to be performing “safety-sensitive functions” and are subject to the drug and alcohol testing requirements. This includes not only full-time drivers, but also part-time, intermittent and backup drivers.
Although the DOT has specific regulations about who, when and what is tested, employers can also go above the “floor” set by the regulations, including expanding who is tested or what substances are tested. DOT regulations require testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and phencyclidine (PCP). The DOT also requires testing for alcohol in a concentration of 0.02 or greater. Employers must have a written policy that is provided to employees and are required to keep a statement signed by each employee certifying that the employee received the policy and any related educational materials. Likewise, employers are required to train all personnel who supervise drivers in order to ensure they are capable of determining whether reasonable suspicion exists to believe a driver may be under the influence of drugs or alcohol. The training must include at least 60 minutes on alcohol misuse and 60 minutes on other controlled substances (at least 120 minutes total).
Under these regulations, employers are required to perform testing in many different situations. For example, employers must perform:
- Pre-Employment Testing.
- Random Testing (if the employer has two or more covered employees in the testing pool).
- Reasonable Suspicion Testing (conducted when a driver appears to be under the influence of drug or alcohol, which is the reason “reasonable suspicion” training is required for supervisors).
- Return-to-Duty Testing (conducted for employees who formerly tested positive or refused testing as well as follow-up testing, usually a minimum of six tests in 12 months (although the period of follow-up testing may be extended for an additional four years)).
- Post-Accident Testing. Employers may be required to test an employee in the event of a human fatality, whether the employee is cited or not. An employee involved in an accident resulting in any bodily injury requiring medical treatment away from the scene must be tested, but only if that employee was cited by law enforcement. Likewise, testing is required for an employee involved in an accident that resulted in a vehicle being towed but, again, only if the employee was cited for that accident.
An employee is considered to have “failed” his or her test when that employee tests positive for a drug or registers 0.04 or greater alcohol content (though, it should be noted that an employee may be required to be removed from duty in the event of a test result that is 0.02 – 0.39). Refusal to test is considered generally equivalent to testing positive. If an employee fails or refuses a test, the employer must immediately remove the employee from performing safety-sensitive functions (such as driving CMVs) until the employee successfully completes the return-to-duty process with a DOT-qualified substance abuse professional (“SAP”). For example, the regulations provide, “As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process. . . . The first step in this process is a SAP evaluation.”
In terms of offering and paying for that SAP evaluation, the regulations provide that employers are not required to provide the evaluation or subsequent education or treatment for an employee who has violated a DOT drug and alcohol regulation. However, if the employer offers the opportunity to return to a DOT safety-sensitive duty following a violation (including a positive test or refusal to test), that employer must ensure that the employee completes the SAP evaluation and complies with the SAP’s recommendations. The employer and employee are permitted to decide together who will pay for the SAP evaluation and other treatment, although the regulations note that the issue may already be governed by a management-labor agreement or healthcare benefits.
Again, the employer may choose to extend DOT-required testing to non-DOT covered employees. However, in any event, it is recommended that you review your current testing policies and ensure that employees have certified receipt. If you feel you are not in compliance with DOT testing regulations, there are resources available for employers on the DOT website, including an interactive feature called “Am I Covered” that will help employers determine if they need to comply with testing regulations.