By Michael Dodd
U.S. Department of Transportation drug and alcohol regulations, and how they apply to our GAWDA members, can be one of the more difficult areas of regulatory issues to understand.
There are two main sections in the Department of Transportation (DOT) regulations that discuss the drug and alcohol regulations: 49 CFR, Parts 40 and 382. The regulations were written to prevent accidents and injuries resulting from the misuse of controlled substances and alcohol by drivers of commercial vehicles. These rules apply to drivers who are required to have a commercial driver license (CDL). Part 382 says to use the definition for commercial motor vehicle found in Part 383. (Don’t you just love the way they point you from regulation to regulation while you try to understand what they are trying to tell you?)
Here are more specific guidelines to help you understand those precise rules.
First, from the definition found in 49 CFR Part 383, a commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce, whether interstate or intrastate, to transport passengers or property, if the motor vehicle:
- Has a gross combination weight rating of 26,001 pounds or more inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
- Has a gross vehicle weight rating of 26,001 pounds or more; or
- Is designed to transport 16 or more passengers, including the driver; or
- Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act, and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR Part 172, Subpart F).
Part 40 discusses how to go about the collection and testing of driver samples. It is written in a question-and-answer format. Part 382 discusses how the drug and alcohol program applies to DOT-regulated employers and drivers. (Please note: many of the items that formerly were included in Part 382 have been moved to Part 40, so you need to be aware of both parts to fully understand the drug and alcohol regulations.)
Key to remember is that you must have a written program with all the elements outlined in 382.601. Everything keys around “safety-sensitive work.” You must define safety-sensitive work in your written program.
DOT has defined safety-sensitive work for drivers as: “safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work.”
Under the regulations, safety-sensitive functions include:
- All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer
- All time inspecting equipment as required by 392.7 and 392.8 of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time
- All time spent at the driving controls of a commercial motor vehicle in operation
All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of 393.76 of this subchapter)
- assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
- All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
The rules also state that employers must give each driver a copy of the company’s written program and that every driver must sign a receipt stating that he/she received a copy of the written program. (I highly suggest using the JJ Keller publication, Alcohol & Drug Testing: What Drivers Need to Know – Driver Handbook, product code 38797).
Training for Supervisors
Employers also must train all persons designated to supervise drivers with at least 60 minutes of training on alcohol misuse. They also must provide at least an additional 60 minutes of training on controlled substances abuse.
The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under 382.307. The training shall include the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances.
Things to note:
- Recurrent training for supervisory personnel is not required.
- Pre-employment testing for controlled substances is required for all CDL drivers.
- You may not use the driver until you have received a negative test result.
- Post-accident drug and alcohol testing must be done within certain timeframes following certain DOT-specified accidents. The types of accident conditions that require testing be done are:
- If any person involved in the accident dies
- If the driver receives a citation for a moving traffic violation and any vehicle involved in the accident must be towed from the scene.
Time factors are also defined within the regulations regarding accidents. They require that the driver must be tested for controlled substances within 32 hours of the accident, and must be tested for alcohol within two hours of the accident. If the driver is not tested within these timeframes, the employer must document the reasons why that did not occur.
Previous-employer drug-and alcohol-testing results must be obtained for any new drivers who have been in a previous-employer drug- and alcohol-testing program during the previous three years, as well.
- Employers should receive and review this information before using the driver in any safety-sensitive work. However, employers may use the driver for up to 30 days before obtaining the information.
- Employers also must have a documented, good-faith effort to obtain the results before using the driver beyond the 30-day period.
- Employers also must be conducting random drug and alcohol testing of CDL drivers at the respective annual rates of 25 percent and 10 percent of their total CDL driver pool.
- That testing must be conducted in a way that is evenly spaced across the year, and there must be documentation on file to prove that the testing occurred. (Please note that the random selection must be done by a scientifically valid method — and that drawing names out of a hat is not considered scientifically valid.)
The drug and alcohol regulations are some of the most complicated regulations that GAWDA members face. If there are any questions, please feel free to contact me for help.