- Effective July 1, 1996, all commercial motor vehicle drivers (GVWR 26,000 lb+, designed to carry 16 or more passengers including the driver, or placarded to carry hazardous materials) were subject to U.S. Highways Administration drug and alcohol testing regulations.
- Penalties for non-compliance are severe. Failure to maintain the designated records, failure to test as required, use of unqualified (testing) service providers, and use of a driver that is not qualified to drive in the United States (under the DOT-regulated program) can result in fines up to $10,000 U.S. per infraction. Failure to have a program in place can result in loss of operating authority into the United States. DOT officials are auditing Canadian companies for compliance.
- Any company that starts operations into the US must ensure they have a policy in place and meet all of the regulatory requirements.
- The attached summary highlights the program requirements, which are found in significantly more detail in the regulations themselves. Part 382 sets out the program requirements which must be implemented by the employer. They must set specific standards around alcohol, illicit drug and medication use, and are required to implement a testing program (pre-employment, reasonable cause, post accident, random), to pull drivers from service if they violate the rules or test positive, and subject them to stringent conditions before and on return to duty (including testing).
- All testing must be done in compliance with part 382 and part 40 or penalties will result. Part 40 sets out the scientific and technical testing program requirements, and employers must only use service providers that comply with the regulation.
- Both parts 382 and 40 have been significantly revised and the changes were effective in August, 2001. Anyone operating into the United States should be aware that the company and their drivers must meet ALL of the standards and regulations set out in the Federal Motor Carrier Safety Regulations, and not just these two sections. Guidelines and amendments come out periodically and are posted on the web site at the end of this handout.
- There are changes taking place that your Third Party Administrator should have communicated.
The Department of Transportation has made it clear that any state initiative to either allow for the use of medical marijuana, or that has resulted in legalization of marijuana have no bearing on the drug testing program; this remains a Schedule I drug whose use is illegal under federal law. Therefore no matter what location the driver resides, or what state or country the driver is tested in, the MRO can not by law overturn a positive marijuana result.
Effective January 1, 2018 there were changes to the testing program which specifically extend the opiates to be tested by adding the requirement to test for oxycodone, oxymorphone, hydrocodone, and hydromorphone. There are a number of other technical changes which your Third Party Administrator will advise on.
The most current set of the Part 382 regulations for the motor carrier industry is found at: https://www.ecfr.gov/cgi-bin/text-idx?SID=25503a9c1ed335ab722ce6f294c8d438&mc=true&node=pt49.5.382&rgn=div5
The most current employer information on the Part 40 regulations on implementation and testing is found at: https://www.transportation.gov/odapc/frpubs
Although there is a proposal to allow for oral fluid testing for drugs, that is not yet a part of the regulations although it is proposed in future that in situations when the donor can not provide a sufficient urine sample at the collection site. And use of point of collection testing devices (POCT) is not allowed for drivers covered by the regulations.
- The company that directs the driver is responsible for compliance, whether they use employee drivers, or drivers that are contracted, leased or otherwise utilized by that company. The company does not have to be a motor carrier - they simply have to direct drivers under their operating authority to carry a product or passengers into the U.S. Employers must ensure all drivers they use for any cross border work are under a program that meets the regulatory requirements.
Short Guide to U.S. Regulations
1. Who Gets Tested?
The DOT program applies to “safety-sensitive” employees in commercial transportation who maintain a Commercial Drivers License (CDL) and:
- drive a vehicle weighing more than 26,000 pounds; or
- drive a DOT-placard vehicle carrying hazardous materials; or
- drive vehicles designed to carry 16 or more passengers including the driver.
It may extend to mechanics, dispatch, maintenance, and management personnel if they maintain a CDL and have reasonable potential to operate into the U.S. It does not apply to CDL holders that remain in Canada. If drivers who only operate in Canada are tested, it is under their own company policy.
2. What Gets Tested?
Employers must use Evidential Breath Testing devices (EBTs) or a saliva screen test to initially check for blood-alcohol concentrations at or above .02 and if detected at this level, an EBT must be used to confirm within 30 minutes. Only devices approved by the National Highway Transportation Safety Administration may be used. Companies may use their own (trained) employees, contract external services, or join a consortium for this. They must test for marijuana, cocaine, amphetamines, opiates and PCP using split-sample collection and urinalysis conducted at a certified lab. All parts of the testing process must be managed by fully qualified service providers (trained collection agents, analysis using approved alcohol testing devices or certified laboratories for drug testing, with medical review of drug test results by a qualified Medical Review Officer).
3. When do you Test?
Pre-employment: Drug test (alcohol optional) must be conducted before an employee first performs a DOT-regulated safety-sensitive function (including moving from another position within the company).
Post-accident: After a qualifying accident (any fatality, or driver receives citation and a vehicle is disabled and towed, or driver receives citation and someone needs medical attention away from the scene).
Reasonable Suspicion: Based on a trained supervisor’s observations of employee’s behaviour or appearance.
Random: Unannounced and with unpredictable selection just before, during or after performing a safety sensitive function for alcohol, any time when on duty for drugs. 50% rate for covered employees/year for drugs and 10% for alcohol.
Return to Duty: After a rule violation after the return to duty process is complete and being cleared by a Substance Abuse Professional (SA) to resume safety-sensitive functions.
Follow-up: After a rule violation under a program directed by a SAP (min. 6 times in first 12 months up to five years).
4. Consequences for Drivers?
Drug Violation (Positive test - including positive pre-employment - refusal to test or unauthorized use): Immediate removal from safety-sensitive position and referral for SAP assessment.
Alcohol from .02 to .039: Removal for 24 hours; no SAP assessment or return to duty testing required as this is not considered a rule violation.
Alcohol Violation: (Test at .04 or above, refusal to test, use on the job, use with 4 hours of performing safety-sensitive duties or 8 hours after an accident prior to being tested) - Immediate removal from safety-sensitive position and referral for SAP assessment.
Impaired Driving Citation - Immediate removal from safety-sensitive position and referral for SAP assessment.
Return to Duty/Follow-up: Requires completion of SAP-recommended treatment, negative return-to-duty test result, and follow-up tests. The employer is not required to retain the employee or provide assistance beyond referral to a SAP, and may or may not hire, suspend or terminate employment depending on company policy and practices. Employers are still subject to other applicable laws in their jurisdiction.
5. Other Obligations?
Employers must identify their Designated Employer Representative (DER) for administration of the program, establish a written alcohol and drug policy, provide safety-sensitive supervisors with at least two hours of training, maintain detailed records of testing, training and education, check three year past testing history of applicants with former employers or those to who they applied to but were not hired by, ensure drivers have maintained qualifications (e.g. follow-up program if required), and provide information to employees about the company program, the regulations, and alcohol and drug issues. Subpart G of the regulations provides further information on employer obligations re. addressing past violations.
All relevant material on the application of these regulations is found at: http://www.dot.gov/ost/dapc/