Before getting started here, this post is not for people who enjoy reading dull legal text and federal regulations. If that is the case, just go read 49 CFR Part 382. It’ll be a field day.
However, if you would rather avoid such a chore, then you are in the right place. The whole point of this post is to clarify the regulation and highlight the important elements in as painless a way as possible.
This post will introduce the regulation and summarize subpart A.
49 CFR Part 382 Definition and Exposition
49 CFR Part 382 is the Federal Motor Carrier Safety Administration (FMCSA) regulations on “controlled substances and alcohol use and testing.” All this means is that it lays out the FMCSA policy on drugs, alcohol, testing, and training.
The purpose of 49 cfr 382 is to prevent accidents and injuries related to drugs and alcohol.
The Seven Subparts
The regulation itself is a dense body of work including seven subparts. The seven subparts are:
- Subpart A — General
- Subpart B — Prohibitions
- Subpart C — Tests Required
- Subpart D — Handling of Test Results, Records Retention, and Confidentiality
- Subpart E — Consequences for Drivers Engaging in Substance Use-Related Conduct
- Subpart F — Alcohol Misuse and Controlled Substances Use Information, Training, and Referral
- Subpart G — Requirements and Procedures for Implementation of the Commercial Driver’s License Drug and Alcohol Clearinghouse
Subpart A — General
The first important element of Subpart A is the exceptions. They are:
- FTA employers and drivers
- Military personnel
- And farmers and farming equipment
If you fall under any of these categories, it may be worth your time to investigate further.
Then we learn that the testing procedures laid out in 49 CFR Part 40 apply to 49 CFR Part 382. Of course, 49 CFR Part 40 is just as extensive as part 382…(We will most likely be writing a summary of part 40 in the near future as well.)
Next comes the definitions, many of which are straightforward and obvious. But I will highlight three of the more important definitions here.
Commercial Motor Vehicle:
- The FMCSA has a very specific definition of a commercial motor vehicle
- First, the vehicle must be transporting people or property for the purpose of commerce
- Then the vehicle must have a gross combination weight or weight rating greater than 26,000 pounds (the higher figure between weight and weight rating is used here)
- And the towed unit weight or weight rating must be greater than 10,000 pounds (again the highest figure used)
- Or the vehicle must be transporting 16+ people including the driver
- Or the vehicle is transporting hazardous materials
- For an accident to legally be called an accident, the following criteria must be met:
- The vehicle is not able to leave the scene of the accident after simple repairs attempted
- Or the vehicle could be driven away, but not without further damaging it
A few more things that would not be considered an accident: tire damage, even when spare not available; headlight/taillight damage; or damage to turn signals, horn, or windshield wipers.
- Whenever the driver is:
- At the shipping facility, plant, supplier, whatever it may be, waiting to dispatch
- Inspecting equipment
- On a vehicle, with the exception of sleeping
- Repairing a vehicle
- Loading, unloading, supervisor or managing the loading or unloading of a vehicle
Then the regulation explains that it should pre-empt State and local regulation, with the exception of criminal law.
And part 382 does not prevent employers from adding their own additional drug and alcohol policy. For many companies, part 382 is merely a baseline.
And employers must notify drivers when the drug test is required by part 382 as well as when it is not. Employers can’t pretend that a drug test is legally required when it is not.
Then it explains that the process for standing down an employee awaiting drug and alcohol test results is actually very difficult. If you need to stand an employee down, then you may need to contact the FMCSA directly.
And finally, 49 cfr part 382 explains that an employee who admits to alcohol or drug use is exempt from the return-to-duty process. Of course, the correct steps must be taken, and the employee cannot be using the confession to get out of a test. If you need to know the exact parameters for an allowed admission, click the link.
49 CFR Part 382 Subpart B: Prohibitions
Subpart B – Prohibitions – consists of seven different prohibited actions revolving around controlled substances. These prohibited actions pertain to both drivers and employers.
Drivers cannot perform safety-sensitive functions in the following instances:
- Their alcohol concentration is greater than or equal to 0.04
- They are using alcohol while on duty
- They have used alcohol within 4 hours of performing safety-sensitive duties
- They are either within 8 hours of an accident or have not yet taken the post-accident alcohol test, whichever ends first
- They have refused to submit to any of the six DOT testing situations
- They have used any Schedule 1 drugs (I’d say for 99% of the population, the names of those drugs could just as well be in a foreign language, and we wouldn’t even know…)
- They have a positive, substituted, or adulterated drug test on record
Also, before going into detail on each of these instances, employers may not allow a driver to work if they have actual knowledge of any of these prohibitions.
Okay, so let’s explain each of the instances above:
Alcohol Concentration > 0.04
The reasoning behind some of the prohibited actions is pretty obvious, and an alcohol concentration exceeding 0.04 falls under that category.
Don’t perform safety-sensitive duties when you are legally drunk!!!
Using Alcohol While On-Duty
Another prohibition falling under the category of duh, using alcohol while on-duty is a dubious proposition. Just don’t do it, and if you are a supervisor or employer, don’t allow your drivers to do it.
Alcohol Use Within 4 Hours of Safety-Sensitive Duties
If a driver has used alcohol within 4 hours of performing their safety-sensitive duties, then they could still have alcohol in their system when they start their work.
Also, I say “safety-sensitive duties” here because that involves more than just driving. It also includes being on-site getting ready to drive, servicing any commercial motor vehicle, and any time on-site post driving.
8 Hours Post Accident Or Until Getting Post-Accident Alcohol Test
Supervisors, DERs, and employers need to know whether alcohol was involved in the accident. After an accident, if a driver drinks prior to getting an alcohol test, there is no way to determine whether alcohol was involved.
Also, after 8 hours any alcohol will have likely passed through the driver’s system, so doing a test at that point is not terribly useful.
So after 8 hours or after an alcohol test is performed, the driver is free to get a little rowdy. But not before!
If the driver does drink before the test, or does not make themselves available for a test, that driver is liable.
If the driver makes themselves available for testing and yet the DER does not do the test within 8 hours, the DER has a whole bunch of paperwork explaining why the test didn’t happen.
Alcohol needs to be ruled out of the possible causes of the accident.
Refusal To Submit To DOT Test
Any refusal to do a DOT test is equivalent to a verified positive result. It automatically requires the driver to go through the DOT return-to-duty process before continuing with safety-sensitive duties.
If a driver refuses to test, they are barred from safety-sensitive functions.
Also, before moving on to the next point, here are the six DOT testing situations:
- Reasonable Suspicion
Any refusal of these tests disqualifies a driver from their work.
Schedule 1 Drug Use
If a driver has used any Schedule 1 drugs, which are listed in 21 CFR 1308.11, they are barred from performing safety-sensitive duties.
These drugs mostly fall under the following classes:
Obviously, if they have used any of these drugs, they are not fit to perform any function in their typical job criteria.
And if an employer has knowledge of a driver’s drug use, they must stop that driver from working.
Also banned are the non-Schedule 1 drugs, with one exception: if a licensed medical practitioner prescribes the drug to the driver, with full knowledge of the driver’s history and occupation. The medical practitioner must also ensure that it will not adversely affect the driver’s ability to do their job.
Notice how there isn’t any time criteria relating to the use of these drugs. That is because if a driver has used these drugs at all, that bars them from safety-sensitive duties.
Of course, in practice there’s no way to ban Driver Ricky from safety-sensitive duties because he smoked pot ten years ago. But let’s just say this: if you’re a driver don’t go blabbering to your supervisors and employers about your weed smoking hippie phase when you lived in Berkeley.
Positive, Adulterated, Substituted Test Result
If the driver has a verified positive, adulterated, or substituted test result, that driver cannot perform safety-sensitive duties (i.e., their job) until completing the DOT return-to-duty process.
Adulterated and substituted test results are considered refusals to test. And as explained in the refusal to test section, that also bans the driver from safety-sensitive duties until completing the DOT return-to-duty process.
Basically, if there is evidence of drug use in the form of a positive test result, the employer cannot allow the driver to work. The driver must first complete the return-to-duty process before reinstatement.
The Employer’s Major Responsibility
Employers must require drivers to go through the DOT return-to-duty process after any breach of these prohibitions.
49 CFR Part 382 Subpart C: Tests Required
There are six FMCSA testing situations as detailed in 49 CFR Part 382. They are as follows:
- Pre-Employment Testing
- Post-Accident Testing
- Random Testing
- Reasonable Suspicion Testing
- Return-To-Duty Testing
- Follow-Up Testing
No driver can begin performing safety-sensitive duties until he or she has received a verified negative drug test result from an MRO or C/TPA.
The exception to this rule is if the applicant has been part of a controlled substances testing program within the past 30 days from the time of application and was either tested in the last six months or had been part of the controlled substances program for the past 12 months prior to their application.
Also, the prior employer should have no record of any violations on the applicant.
And pre-employment alcohol testing is optional.
Post-accident testing is drug or alcohol testing done after an accident, as defined by the FMCSA.
You must test drivers post-accident for alcohol if there is loss of life or if a driver is issued a citation within 8 hours of the accident.
You must test drivers post-accident for drugs if there is loss of life or if a citation is issued to the driver within 32 hours of the accident.
It is important to be timely with FMCSA post-accident testing. You must test for alcohol within 8 hours of the accident. But if you test more than two hours after the accident, even when still less than 8 hours, you must provide paperwork explaining the delay.
If you wait longer than 8 hours, you cannot do an alcohol test.
For drug testing, you have 32 hours to complete the test. If you don’t complete the test within 32 hours, you must provide paperwork explaining why the test wasn’t completed.
After 32 hours, you must cease efforts to test for drugs.
Random testing is when all drivers are placed in a pool and randomly selected periodically, without any prior notice, for drug and alcohol tests.
All drivers must partake in a random drug testing program.
As of March 5, 2019, the FMCSA random testing rates are as follows:
- 10% of the average number of drivers in your program must be tested for alcohol
- 25% of the average number of drivers in your program must be tested for drugs
Reasonable Suspicion Testing
Reasonable suspicion testing is when a supervisor orders a driver to take a drug or alcohol test based on suspicion that they have been using a controlled substance.
First, for supervisors to require reasonable suspicion alcohol or drug tests, they must receive training meeting the requirements set by the FMCSA.
Then, their observations must be:
- Specific: they must be able to pinpoint the things that tip them off to substance use — eyes, smell, breath, gait, disheveled appearance, speech slurred, etc.
- Contemporaneous: they must be made in the present situation, not last week or even yesterday
- Articulable: they must be written down in an understandable way
Also, the observations must be made regarding the driver’s appearance, behavior, speech, or body odors.
Alcohol testing determinations must be made when the driver is about to perform, performing, or just completing safety-sensitive duties. It is not illegal to drink on your own time.
And drug testing determinations can be made even if the supervisor suspects the signs they observe are related to chronic use or withdrawal.
The rules for the return-to-duty testing process are highlighted in 49 CFR Part 40 Subpart O.
A driver must receive a verified negative result to return to safety-sensitive duties.
A follow-up test is a test given to a driver who has returned to safety-sensitive work following a failed DOT drug or alcohol test.
The substance abuse professional determines the follow-up plan for drivers, including the number of follow-up tests required.
Subpart A sets the stage for 49 cfr part 382. Subpart B then discusses the prohibited driver and employer actions. Subpart C covers the six FMCSA testing situations.
And while it doesn’t make for the most interesting read for most people, it contains information that many of you need to know.
We will continue next week with Subpart D. I’m sure everyone cannot wait 😉