Are you interested in learning about the DOT requirements for drug and alcohol testing? You can also learn about some of the history behind about the DOT requirements for drug and alcohol testing, who is covered for DOT drug and alcohol testing, and which DOT agencies regulate employers for DOT drug and alcohol testing. We’ve received a number of questions regarding these topics and have covered them in our recent podcast—Safety First: How DOT Drug Testing Requirements Protect America’s Transportation Systems.”
This podcast discussion clarifies essential elements of DOT compliance, covering the five drug categories under examination (marijuana, cocaine, opioids, amphetamines, and PCP) as well as the six federally required testing situations. Joe Reilly and Brandie Helveston explain the necessity for every DOT-regulated employer to have a trained designated employer representative (DER), the importance of supervisors in identifying impairment, and the significant repercussions for failing to comply—including fines that can reach thousands of dollars or even total operational halts.
Transportation employers will find the practical advice on choosing qualified testing partners particularly beneficial as well as insights into the distinctions between regulatory bodies and the specific obligations relevant to their sector. With DOT oral-fluid testing coming soon and electronic record keeping revolutionizing compliance management, remaining updated on these changing regulations is more vital than ever.
What are the key drug-testing requirements for employers regulated by the DOT, and do they vary by DOT mode?
Again, DOT modes are those DOT agencies that regulate transportation employers. These include:
- Federal Motor Carrier Safety Administration—FMCSA–49 CFR Part 382
- Federal Aviation Administration—FAA–14 CFR Part 120
- Federal Railroad Administration— FRA– 49 CFR Part 21
- Federal Transit Administration—FTA– 49 CFR Part 655
- Pipeline and Hazardous Materials Safety Administration—PHMSA–49 CFR Part 199
- United States Coast Guard—USCG–46 CFR Part 16& 46 CFR Part 4
How we do drug testing doesn’t really vary because 49 CFR Part 40 is the overall drug and alcohol testing regulation for the DOT. Who we test, how often we test them, and what type of supervisor training and employee education might be required might vary from agency to agency. The random rates of random testing might vary among agencies.
Therefore, the key drug-testing requirements are to follow the strict rules from 49 CFR Part 40.
Specimen collectors need to be trained and qualified. Currently, urine is the only specimen we use for DOT drug testing. The laboratory that receives the specimen must be certified by the United States Substance Abuse Mental Health Services Administration (SAMHSA). The test results must go from a lab to a medical review officer who is a licensed physician. This officer reviews the results and rules out any prescription medications that the donor may be taking through an interview with the donor. This is so tests are not labelled positive when the donor may be taking Adderall or prescription codeine or some other type of prescription that could cause a positive result.
Another key drug testing requirement is that records are kept very confidential. In DOT testing, we are only testing for five classes of drugs, no more and no less: amphetamines, marijuana, cocaine, opioids and phencyclidine (PCP).
How often do DOT-regulated employees need to be tested for drugs and alcohol?
Everybody in the DOT program gets drug tested when they start or move into a DOT-regulated covered position. So maybe I work for an airline, but my job is sweeping the floor. Okay. And then I get a job as a pilot. So now I’m in a covered position. I need a pre-employment test. Or I’m a truck driver, and I just graduated from truck-driving school, and I get a job with JB Hunt or some other trucking company. I need a pre-employment drug test. Typically, they can do it, but employers typically do not do pre-employment alcohol testing. If I have an accident based on certain, I need a drug and alcohol test. If there’s reasonable suspicion determined by a trained supervisor that I could be potentially impaired, I need to have a reasonable-suspicion drug and alcohol test.
DOT agencies require that employers conduct random testing, and this is where the random testing rates might vary. For example, the Federal Motor Carrier Safety Administration tests 50% of its employees annually for drugs and 10% for alcohol. The FAA tests 25% annually for drugs and 10% annually for alcohol. We typically do these quarterly. So if we had 100 employees in that random pool, we typically test 50%. We’re going to test about 12 to 13 employees per quarter.
In addition, someone who’s had a violation, had a positive test or had refused to test is required to have a return-to-duty test after rehabilitation and is required to have a schedule of follow-up testing after rehabilitation. So there are different types of reasons for testing, and how often they get tested is going to depend.
So they’re tested once for pre-employment, and then it depends how lucky they are for random testing. Hopefully, they don’t have an accident; hopefully, they don’t have reasonable suspicion; hopefully don’t have a violation and have to do return-to-duty and follow-up testing.
What types of drug testing are required by the DOT (e.g., urine, oral fluid, hair)?
Currently, there is a simple answer. We use urine for drug testing. For alcohol testing, we use an evidential breath-alcohol device that must be on an approved list that’s published by the National Highway Traffic Safety Administration (NHTSA). We can use an instant saliva alcohol device; but if that test is positive, it must be confirmed with an actual evidential breath-alcohol testing device, and it must be a device that is approved.
What should employers do if an employee tests positive for drugs or alcohol?
The first thing that you have to do when you know that somebody is positive for drugs or alcohol is remove them from any safety-sensitive position. This means the DER, who is in charge of the program at the company, must be available to receive a phone call regarding an alcohol-positive test because somebody could be sitting at a clinic somewhere and test positive for alcohol and the truck’s out in the parking lot. They can’t drive that truck back because they’re positive for alcohol. So the first step is removal from the safety-sensitive position.
The second step is that the employer must provide to that person a list of substance-abuse professionals, or what we call SAPS, so that they can engage the services of an SAP to go through a return-to-duty rehabilitation program. They will have to complete that program to be eligible to return to work in a DOT safety-sensitive position. That means they will have an initial evaluation, be prescribed treatment and/or education, and then have a final evaluation. Then they’ll need a return-to-duty test.
The company’s does not have to take them back. The company might have terminated them but still has to give them that list of SAPs. And if it was pre-employment, they didn’t hire them, but they still had to give them that list of SAPs. And if it’s FMCSA, that individual driver also gets reported to the FMCSA clearing house, which puts a prohibited status on that driver and sends that prohibitive status over to the state driver’s license bureau. And not only can that person not go back to work until they go through the SAP program, their CDL license is going to be downgraded until they have that return-to-duty test, and that gets them off the prohibited list.
Can you explain the role of the designated employer representative (DER) in DOT drug-testing programs?
Every company that’s regulated by the DOT, whether they know it or not, is required to have a DER. That is the person in charge of the DOT drug and alcohol testing program. That person must have authority to remove somebody from a safety-sensitive position. They must be available 24/7 if you operate 24/7 to get results. And you may have more than one DER because if one is on vacation, there has to be a backup DER.
What are the penalties for noncompliance with DOT drug-testing requirements?
Penalties and fines can be assessed, and you may be put out of service, which means you’re out of business if you’re noncompliant. Every new trucking company gets what’s called a new entrant audit or new entrant exam where a DOT inspector, who might be a state highway patrol person, comes out and says, “Okay, let’s make sure that you’re meeting all of the regulations.” And there are a whole bunch of safety regulations and hours-of-service regulations and mechanical and equipment regulations. But let’s also look at the drug and alcohol testing regulations. Okay, you’ve got six drivers. Do you have six negative pre-employment tests? No, we didn’t know we had to do that. And do you have a random testing program? No, we didn’t know we had to do that. And do you have a policy? No, we don’t. We didn’t know we needed a policy. Well, you need all those things. And on that new entrance exam, they’re going to give you like 30 days to get all that.
The crux of the question is what are the penalties? It could be a warning. It could be fines. Usually fines start at about $11,000 per instance of violation. The major airlines all get audited every single year for their drug and alcohol testing programs. I’ve been to aircraft mechanical facilities that get audited. Sometimes we do mock audits for airlines or for aircraft mechanics. I’ve seen fines of $10,000, $20,000, $30,000, and $100,000 because of noncompliance because it’s a safety issue and somebody could die because you’re not in compliance. So they are going to penalize you for noncompliance. And if it’s really egregious and it’s negligent and you’ve been told to get in compliance and you haven’t, they can put you out of service. They can basically deny your ability to operate for a period of time. So that can be very serious. The cost of hiring a professional third-party administrator (TPA) to help manage the drug and alcohol testing program is minimal compared to what the fines are.
How should employers handle reasonable-suspicion drug testing under DOT regulations?
Reasonable suspicion refers to the idea that somebody might possibly be impaired at work. We might think they are. We might guess they are. What’s the fact that tells us that, yes, they are impaired? Well, they need to have a collection done, and a test needs to be performed. Here’s where it starts. DOT-regulated companies are required to have their supervisors trained in reasonable suspicion, the signs and symptoms of being under the influence of drugs, the harmful effects of drugs, the signs and symptoms of being under the influence of alcohol, and the harmful effects of alcohol.
The training is one hour each on drugs and on alcohol, and we combine them into a two-hour training that encompasses both. Any supervisor who is supervising DOT-regulated employees is required to have that supervisor training. And for some of the agencies, it’s recommended that they have recurrent training. They don’t say exactly how often, but we think about every two years is probably good. The FAA actually requires recurrent training. They don’t say how often, but again, we say about every two years.
So now the supervisor is trained, and they’re comfortable observing somebody, and they have a checklist to check things off like staggering, slurred speech, the smell of marijuana, the smell of alcohol, being belligerent, stumbling, crashing the truck, all types of things that they can check off and say, “Well, I checked off more than two things here.” This is definitely potentially reasonable suspicion, right? It doesn’t necessarily mean they are impaired, but we have to find out the truth. And we find out the truth with the drug and alcohol test.
Supervisors shouldn’t feel bad about taking somebody for a reasonable suspicion test that comes back negative. It’s a safety issue, and we have to determine that whatever we were seeing and hearing and smelling is not drugs or alcohol. So, it’s always about being safe.
The supervisor training is so good because it really helps them identify whether Susie is just being silly today or is really suspected impaired. So that training is very important. It also prevents situations like when we get a phone call and someone says, “Well, Bob’s acting funny today. Can we do a reasonable-suspicion test on him?” Acting funny is not necessarily reasonable suspicion. He should be showing signs and symptoms, things that you see, things that you hear, things that you smell, not just acting funny and not just that somebody said, “Hey, Bob’s drunk, right?” or “Bob smoked a joint, right?” The supervisor must observe it. And the training is great for that as well. Be sure to document everything using the reasonable suspicion checklist provided during the professional-supervisor training for signs and symptoms of possible drug or alcohol use.
What advice do you have for DOT-regulated employers when selecting a drug-testing provider?
Every DOT employer, unless they’re a big major company, needs a third-party administrator (TPA) for drug testing management, often also called a C/TPA – Consortium/Third Party Administrator. This is a drug-testing provider to help them with their drug and alcohol testing program, to provide guidance to make sure everything’s being done within the regulations.
There are lots of people out there who sell and service drug testing. My advice would first be who not to go to. Okay? Don’t go to your local urgent care center to get your DOT program. They do know how to collect urine, but in most cases they know nothing about the regulations. Go to a professional drug and alcohol testing company that has a website that can answer your questions, can tell you that they have trained professionals, and can give you references that might be listed with the Better Business Bureau. Check your references. Do your homework. Get quotes. Look at pricing. The cheapest one isn’t always going to be better. The cheapest one may not have insurance; and if something bad happens, that’s going to be terrible. So check references, look at the Better Business Bureau rating, talk to the people, make a phone call, and talk to the representatives. Decide whether you think they are professional.
For professional DOT drug-and-alcohol testing services, contact a nationwide professional C/TPA–Consortium/Third Party Administrator–National Drug Screening.
