Effective July 5, 2013, DOT regulations require commercial drivers to submit to a substance abuse test when they are subjected to the required random drug and alcohol testing. This requirement is based on 49 CFR Part 382 Subpart C – Controlled Substances and Alcohol Use and Testing. Applicable regulations include:
1. 49 CFR § 382.303(a) For all covered employees, you must conduct pre-employment controlled substances testing under the following circumstances:
a) Pre-Employment Drug Test Required for All Covered Employees
As part of the employer’s obligation under federal law to ensure that no employee uses drugs while performing safety-sensitive functions in his or her job, all employers who use safety-sensitive employees in the DOT must conduct pre-employment drug testing, including new hires and also other applicants for safety-sensitive job duties.
b) Pre-Employment Alcohol Testing Required for Surface Transportation Drivers Employed in a Non-Safety Sensitive Function
As part of the employer’s obligation under federal law to ensure that all employees performing safety sensitive functions are not using alcohol, employers who employ surface transportation drivers employed in non-safety sensitive functions must conduct pre-employment alcohol testing. The requirement includes, but is not limited to, persons employed as dispatchers, office personnel, yardmasters, mechanics or any other employee who does not have direct responsibility for safely operating a commercial motor vehicle (CMV).
2. 49 CFR § 382.307(a) You must conduct random controlled substances tests under the following circumstances:
a) Post-Accident Testing Required for All Covered Employees Engaged in Safety-Sensitive Functions
In order to promote safety, prevent theft and misconduct, and safeguard company assets, you must test an employee who performs a safety-sensitive function involved in a DOT operation for a violation of DOT’s drug and alcohol testing regulations if that employee has been involved in an accident while performing a safety sensitive duty. Such accidents include any event involving a commercial motor vehicle operating on a public road in interstate commerce which results in: 1) death; 2) bodily injury requiring medical treatment away from the scene; or 3) damage to federal property or damage of the commercial motor vehicle to the extent that it cannot be driven under its own power in its customary manner without further damage or hazard to the vehicle, other traffic, the roadway, or passengers.
b) Random Alcohol Test Required for Surface Transportation Drivers Employed in a Safety-Sensitive Function
You must conduct random alcohol testing on any covered employee who performs a safety sensitive function involved in transportation operations if that person is reasonably suspected by you of violating DOT’s alcohol misuse prevention regulations while performing his/her duties.
3. 49 CFR § 382.307(b)(1) – (4) A DOT post-accident test remains valid only for the specific event that generated it 24 hours thereafter; however, this does not mean that you can perform another random test, rather than a post-accident test the next day.
The basic method of testing used by DOT is called “split specimen” drug testing, meaning two specimens are taken on each individual tested. The first specimen is generally tested using an enzyme multiplied immunoassay technique (EMIT) or an equivalent, which screens for the presence of certain drugs and their metabolites. The first specimen may also be tested using gas chromatography/mass spectrometry (GC/MS), which can detect smaller amounts of drugs or metabolites, but only produces positive results if the drug has been consumed within 5 to 10 days of collection. If these initial tests produce negative results for all drugs and their metabolites, the first specimen is discarded. On the other hand, if the initial test produces a positive result for any drugs or their metabolites (not necessarily for that employee), then a second specimen (the “confirmation” specimen) must be taken within 2 hours of notification of the result. This second specimen will also be tested using an EMIT. If this second test produces negative results, the first test is considered invalid and both specimens are discarded. However, if this confirmation test produces positive results as well, then another confirmation specimen must be taken within 24 hours to confirm those results.
Confirmation testing methods include GC/MS or alternate methods that have been scientifically demonstrated to produce equivalent accuracy in determining drug use. DOT believes that GC/MS is the most accurate and reliable testing method available, but other scientifically proven methods exist.
Initially, the costs associated with drug and alcohol testing were borne by employers. However, as a result of increasing numbers of injuries and fatalities due to impairment on the job (and resulting law suits), the federal government passed legislation requiring states to implement plans for testing those involved in “commercial motor vehicle operations”. Part of those requirements included limiting testing frequency to one random test per year (in addition to any post-accident or reasonable suspicion tests). As such, certain employers began sharing these costs through outfitting employees with special identification cards which function much like debit cards at ATMs. When an employee needs a test, he presents his card to the tester. Tests are weighed by the amount of time spent on the testing process (usually between 30 minutes and two hours) to calculate costs.
The American Civil Liberties Union has challenged this method claiming it violates Fourth Amendment protections against unreasonable search because “many drug tests require that a person provide a urine sample in front of an observer, which can reveal intimate information about their medical conditions or their private lives”. The ACLU also maintains that current DOT regulations for alcohol testing are too broad, because they allow employers to fire employees who test positive for secondhand smoke.