DOT Random Testing Rates as of 1/1/2016
|DOT Agency||Random Drug Testing Rate||Random Alcohol Testing Rate|
|Federal Motor Carrier Safety Administration (FMCSA)||25%||10%|
|Federal Aviation Administration (FAA)||25%||10%|
Federal Railroad Administration (FRA)
Federal Railroad Administration (MOW)
|Federal Transit Administration (FTA)||25%||10%|
|Pipeline & Hazardous Materials Safety Administration (PHMSA)||25%||n/a|
|United States Coast Guard (USCG)||25%||n/a|
What is 49 CFR Part 40?
Oftentimes many may ask what is part 40? Part 40 was created in 1991, the United States Congress passed the Omnibus Transpiration Employee Testing Act.
This act required DOT agencies to implement drug and alcohol testing for all safety sensitive transportation employees. It was at this time that 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 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. The FMCSA controlled substances and alcohol use and testing regulations can be found at 49 CFR Part 382.
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 can I or my employees be tested?
This testing must occur prior to an individual being hired or transferred into a safety-sensitive function.
Random testing is defined as:
- on an ongoing basis,
- spread reasonably throughout the calendar year and
- conducted using a scientifically valid method in which each covered employee has an equal chance of being selected for testing.
Owner-operators, not leased to a motor carrier, are required to belong to a consortium to satisfy the random testing requirement.
This testing occurs when following an FMCSA qualifying accident:
|Type of accident involved||Citation issued to the CMV driver||Test must be performed by employer|
|I. Human fatality||
|ii. Bodily injury with immediate medical treatment away from the scene||
|iii. Disabling damage to any motor vehicle requiring tow away||
|iii. Disabling damage to any motor vehicle requiring tow away||
Types of Post-Accident Tests
- Alcohol tests:
- Post-accident tests must be administered within two hours following the accident, if the test cannot be conducted, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered.
- If a post-accident alcohol test 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.
- DOT 5 panel Urine Drug Test:
- The drug test must be taken within 32 hours of the qualifying accident, 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 substances test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. Records shall be submitted to the FMCSA upon request.
It is important to remember, that any driver who is required to take a post-accident test, must 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
Reasonable Suspicion testing
This occurs when a company official - based on their training - believes the employee shows signs of drug abuse and/or alcohol misuse.
When does Reasonable Suspicion, Testing Occur?
Any safety sensitive regulated employee shall require to submit to an alcohol test when the employer has reasonable suspicion to believe that the employee has violated the prohibitions of subpart B of this part concerning alcohol. Furthermore, an employer shall also require any safety sensitive regulated employee to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning controlled substances.
- The employer's determination that reasonable suspicion exists to require the driver to undergo an alcohol and/or controlled substances test 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
- 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.
- Alcohol testing is authorized by this section only if the observations are made during, just preceding, or just after the period of the work day that the driver is required to be in compliance with this part. 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.
- An alcohol test must be administered within two hours following the determination that the employee was believed to be under the influence of alcohol and the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered.
- If an alcohol test required by this section is not administered within eight hours following the determination, the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.
- No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while the driver is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall an employer permit the driver to perform or continue to perform safety-sensitive functions, until:
- An alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or
- Twenty four hours have elapsed following the determination under paragraph (a) of this section that there is reasonable suspicion to believe that the driver has violated the prohibitions in this part concerning the use of alcohol.
- A written record shall be made of the observations leading to an alcohol or controlled substances reasonable suspicion test, and signed by the supervisor or company official who made the observations, within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier.
Return-to-duty and Follow-up testing
This type of testing occurs after an employee's verified positive drug and/or alcohol test result or refusal to test. The employee must take a DOT return-to-duty test prior to returning to safety-sensitive functions.
The employee will be subject to a minimum of 6 unannounced follow-up tests in the first 12 months. Depending on the Substance Abuse Professional's recommendations, follow-up testing may occur for up to 60 months.
A return to duty test is 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 Follow up Testing?
Follow-up testing is required for drivers who:
- tested positive,
- refused, or
- otherwise violated the prohibitions of 49 CFR Part 382Subpart B; and
- who have completed the return-to-duty process with a DOT-qualified substance abuse professional, and
- have tested negative for a return-to-duty test.
Follow up testing is prescribed by the substance abuse professional (SAP) for a minimum of 6 directly observed tests in 12 months, but can be extended an additional four years.
How does the return-to-duty process conclude?
Employers wishing to permit the employee to return to the performance 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 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 performance of safety-sensitive duties.
A 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 Subpart O
Subpart O refers to the Substance Abuse Professionals (SAP) and the Return-to-Duty Process
What specimens does the DOT recognize for drug and alcohol testing?
Testing for drugs:
- A urine specimen is collected and sent to a certified laboratory for analysis (click here for a list of HHS approved laboratories)
- Devices that provide instant results are not authorized for DOT testing.
- Only urine specimens are authorized for DOT drug testing.
- The urine specimen will be tested for:
- Opiates (codeine, morphine, heroin)
- Phencyclidine (PCP)
Testing for alcohol:
- Alcohol testing involves analyzing breath or saliva for initial (screening) tests and breath for confirmation tests. The specimen is collected and analyzed by an approved alcohol testing device.
- click here for a list of approved screening devices
- click here for a list of approved confirmation devices
- Only those confirmation devices without the asterisk (*) are approved for DOT confirmation testing.
What is a refusal to test?
Refusals include, but are not limited to:
- No-show(failure to appear at the test collection site at the designated time)
- Failure to remain at the testing site until the collection is completed
- Adulteration(urine specimen containing a substance or a concentration of a substance inconsistent with human urine)
- Substitution(urine specimen containing creatinine and specific gravity levels inconsistent with human urine)
- Failure to cooperate with any part of the testing process
For examples of an employee's failure to cooperate, read the Q&A issued in July 2006.
What do I do when the MRO reports a “dilute” test result?
- If the result is reported by the MRO to the employer as positive and dilute, the employer must treat the result as a verified positive test.
- If the result is reported by the MRO to the employer as a negative and dilute with no MRO instructions for recollection under direct observation, the employer may accept the result as a "negative" test or may require the employee to submit to another test if the employer has a company policy requiring a re-collection.
- If the result is reported by the MRO to the employer as negative and dilute with MRO instructions for recollection under direct observation, the employer must ensure that the employee reports immediately for a re-collection under direct observation. NOTE: If the employee declines to take this test, the employee has refused the test.
What happens if I test positive on a DOT drug or alcohol test?
- You will be immediately removed from safety-sensitive functions by your employer.
- Your company policy and/or collective bargaining agreement will determine whether you will be permitted an opportunity for rehabilitation or may be terminated from employment.
- You are not permitted to perform safety-sensitive duties for any DOT regulated employer until you have been evaluated by a Substance Abuse Professional (SAP) and successfully completed the return-to-duty process, which includes a DOT return-to-duty drug and/or alcohol test.
- Working in a safety-sensitive position before successfully completing the return-to-duty process is a violation of the regulations.
- If you return to performing safety-sensitive functions - after successfully completing the SAP return-to-duty process - you will be subject to unannounced follow up testing, which will be in addition to any other required DOT testing.
- Yes, your DOT drug and alcohol testing history will follow you to your new DOT regulated employer.
- DOT regulated employers are required by law to provide certain records of your DOT drug and alcohol testing history to your new DOT regulated employer, only when you sign a specific written release regarding that information.
- If you do not provide written consent for the release of this information, the new employer cannot allow you to perform safety-sensitive functions.
How do I handle a verified positive drug or alcohol test?
- Upon notification of an alcohol violation, a verified positive drug test result, or a refusal to test, you must immediately remove the employee from performing safety-sensitive duties.
- You may use your discretion to determine whether the employee will be rehabilitated or terminated from employment. Regardless, all employees must be provided with a list of Substance Abuse Professionals (SAP).
- Applicants who fail or refuse a drug and/or alcohol test must also receive a SAP list.
If you choose to rehabilitate your employee, you are not permitted to use the employee in covered functions until s/he successfully completes the return-to-duty requirements outlined in 49 CFR Part 40 - Subpart O.
Are there any exceptions to pre-employment drug testing?
Yes, the following examples are allowed by the DOT as exceptions to the pre-employment drug testing requirement:
An employer is not required to administer a controlled substances pre-employment test required by this section if:
- The driver has participated in a controlled substance testing program that meets the requirements of this part within the previous 30 days; and
- While participating in that program, either:
- Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
- Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
- 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.
If an employer chooses to exercise the above referenced exception must contact the 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(s) and address(es) of the program(s).
- 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.
Is pre-employment alcohol testing allowed?
Employers may choose but are not required to, conduct pre-employment alcohol testing under this part. However, if an employer chooses to conduct pre-employment alcohol testing, it must comply with the following requirements:
- It 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).
- It must treat all safety-sensitive employees performing safety-sensitive functions the same for the purpose of pre-employment alcohol testing (i.e., it must not test some covered employees and not others).
- It must conduct the pre-employment tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
- It must conduct all pre-employment alcohol tests using the alcohol testing procedures of 49 CFR part 40 of this title.
- It must not allow a covered employee to begin performing safety-sensitive functions unless the result of the employee's test indicates an alcohol concentration of less than 0.04.
What is Supervisor Training?
49 CFR 382.603 is the DOT regulation requiring supervisors of commercial motor vehicle drivers who operate vehicles requiring a CDL to:
- Take 60 minutes of training on the symptoms of alcohol abuse and
- 60 minutes of training on the symptoms of controlled substances use (120 minutes in total).
The goal of this training is to educate supervisors to identify 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
- 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.
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:
- You are a licensed physician (Doctor of Medicine or Osteopathy);
- You are a licensed or certified social worker;
- You are a licensed or certified psychologist;
- You are a licensed or certified employee assistance professional;
- You are a state-licensed or certified marriage and family therapist; or
- You are a drug and alcohol counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC); or
- 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?
An 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 and unless he/she completes 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?
- A verified positive DOT drug test result,
- a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater,
- a refusal to test (including by adulterating or substituting a urine specimen) or
- 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 first step in this process is a SAP Evaluation. As a SAP, for every employee who comes to you following a DOT drug and alcohol regulation violation, you must accomplish the following:
- Provide a comprehensive face-to-face assessment and clinical evaluation.
- Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.
- You must make such a recommendation for every individual who has violated a DOT drug and alcohol regulation.
- You 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.
- 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.
- Appropriate treatment may include, but is not limited to, in-patient hospitalization, partial in-patient treatment, out-patient counseling programs, and aftercare.
- You must provide a written report directly to the DER highlighting your specific recommendations for assistance.
- For purposes of your role in the evaluation process, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation.
- You must not take into consideration in any way, as a factor in determining what your recommendation will be, any of the following:
- A claim by the employee that the test was unjustified or inaccurate;
- 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
- Personal opinions you may have about the justification or rationale for drug and alcohol testing.
- 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. As the MRO, you 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.