What are the laws related to DOT drug & alcohol testing?
Employers regulated by the U.S. Department of Transportation have requirements for drug and alcohol testing. These requirements are published in Title 49 of the Code of Federal Regulations (CFR) – specifically, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, rule 49 CFR Part 40.
Subparts J, K, L, M, and N of 49 CFR Part 40 define the DOT requirements for alcohol testing. These parts address:
- Alcohol Testing Personnel
- Testing Sites, Forms, Equipment, and Supplies Used in Alcohol Testing
- Alcohol Screening Tests
- Alcohol Confirmation Tests
- Problems in Alcohol Testing
Employers regulated by the U.S. Department of Transportation must also follow specific DOT agency or mode regulations as published by each DOT agency, also called modes or operating administrations.
The overall DOT regulation, 49 CFR Part 40, describes how drug and alcohol testing is conducted, including specimen collection, testing devices, and reporting of results. The agency regulations cover who gets tested and when they get tested. These agency regulations also spell out other program requirements, such as employee education and supervisor training.
Which applicants and employees are subject to DOT alcohol testing?
Each DOT agency, as mentioned above, publishes the job functions considered DOT-regulated or covered positions. These include:
Under what circumstances do DOT regulated employers test for alcohol?
Pre-employment alcohol testing is optional. Employers may choose to conduct pre-employment alcohol testing. If they do, they must test all applicants (or transfers) for safety-sensitive positions.
Except for PHMSA and USCG, alcohol is a required part of each DOT agency’s random testing program.
Each DOT agency has criteria for an accident that requires DOT testing, and alcohol post-accident testing may be included.
For reasonable suspicion, alcohol testing is required when alcohol use is suspected.
When employees have violated the alcohol rules (≥ 0.04 BAC or refusal), return-to-duty testing must include alcohol testing.
For follow-up testing, the Substance Abuse Professional (SAP) can require both drug and alcohol tests. There must be at least six tests in the first 12 months, and the testing schedule can extend up to 60 tests over five years.
What are required procedures for DOT alcohol testing?
DOT alcohol testing is conducted in a private area using either:
- an evidential breath testing device (EBT), commonly called a breathalyzer, or
- an instant saliva alcohol testing device.
With either method, any results that show an alcohol concentration of 0.02 or greater must have a second confirmation test using an Evidential Breath Testing (EBT) device that can print the results. This test must occur at least 15 minutes after the screening test (to allow dissipation of mouth alcohol). It must also be conducted by a certified Breath Alcohol Technician (BAT).
Detailed information on how to conduct a DOT breath alcohol test is specifically described in the Code of Federal Regulations: 49 CFR Part 40 Subpart L (alcohol screening tests) and 49 CFR Part 40 Subpart M (alcohol confirmation tests). There is no Medical Review Officer (MRO) involvement with DOT alcohol testing. Alcohol test results go directly from the BAT to the employer’s Designated Employer Representative (DER)
What happens when an employee or applicant tests positive on DOT alcohol testing?
The main consequences of a positive alcohol test result or refusal to test are:
- Removal from the DOT safety-sensitive position
- Referral to a Substance Abuse Professional (SAP) for a return-to-duty program
The employer always has the option to terminate the individual’s employment, but the above steps must take place.
A person with a positive alcohol test result cannot return to a DOT safety-sensitive position until the return-to-duty program is successfully completed and a return-to-duty test yields a negative result. The employer again has the option of allowing the employee to return to duty or not.
For FMCSA-covered drivers, a positive alcohol test will also be reported to the FMCSA Clearinghouse, and the driver will be placed on a prohibited list, resulting in a CDL license downgrade.
Importance of Recording and Compliance
Employers regulated by the DOT have many responsibilities within the required DOT drug and alcohol testing program. These include recordkeeping and overall compliance.
Detailed records of alcohol testing must be maintained. Here is a brief summary:
- Records regarding positive alcohol test results or refusals must be maintained for five years.
- For two years, records must be maintained regarding the alcohol collection process and, for BATs, records of the inspection, maintenance, and calibration of EBTs.
- For one year, maintain records of canceled test results and alcohol test results with a concentration of less than 0.02.
Overall compliance with the DOT drug and alcohol testing program is essential for the safety of the traveling public and all employees working in transportation. DOT compliance is also essential to avoid fines and penalties.
Employers not following DOT drug and alcohol regulations can be fined tens of thousands of dollars and, in some cases, even more.
Conclusion
DOT alcohol testing procedures are clearly laid out in the DOT regulations 49 CFR Part 40. Employers should follow these regulations carefully to comply with DOT alcohol testing requirement. Hiring a professional and nationally accredited third-party administrator (TPA) to assist the employer with compliance is an easy and smart decision.
Alcohol testing is mandatory for employees covered by DOT regulations. Alcohol testing for these employees may occur through various methods, including random testing, post-accident testing, reasonable suspicion testing, return-to-duty testing, and follow-up testing. While DOT-regulated employers may conduct alcohol testing as part of pre-employment procedures, this practice is optional and infrequently implemented. The primary aim of DOT alcohol testing is to discourage alcohol consumption among DOT-covered workers during their work hours, thereby promoting safety within the transportation sector.