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Federal Regulations – FMCSA (An Overview)
Regulations quoted below are from 49 CFR Part 382 Subpart B as pertaining to drivers of commercial motor vehicles regarding controlled substance use.
- No driver “shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner” who has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.
- No employer “having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function.”
- No driver “shall report for duty, remain on duty, or perform a safety-sensitive function if the driver tests positive for controlled substances”.
- No employer “having knowledge that a driver has tested positive for controlled substances shall permit the driver to perform or continue to perform safety-sensitive functions”.
Types of Tests Required
Pre-employment
A pre-employment drug screen is required for driver applicants or current employees transferring to a CDL position. The employer must receive a verified negative drug screen before allowing any employee to perform safety-sensitive duties.
Random
FMCSA requires random testing of safety-sensitive employees at a specific amount per year. This testing must be evenly spread throughout the year and the selection process must be made by a scientifically valid method. NTA, Inc.’s clients may choose a random selection frequency of weekly, monthly, quarterly, or annually. Our random selection lists are electronically generated by a computer program written to meet government standards. Each time a selection is made, every employee has an equal chance of being chosen.
Companies with 7 eligible employees or less may be placed in a consortium group. Consortiums are random testing pools that consist of drivers/employees from many different companies. Selection percentages are met by the entire consortium and are spread evenly throughout the year on a quarterly basis. Participants in the consortium must complete testing each quarter in order to be allowed to remain in the consortium. If they do not, they will be removed and set up as an independent group.
Post Accident
Post accident drug testing is required within 32 hours of an accident where any of the following have taken place:
- the accident involved a fatality regardless of fault
- any of the participants in the accident received bodily injury requiring immediate medical treatment away from the scene and the driver received a citation for a moving violation
- any vehicle involved received disabling damage requiring tow away and the driver received a citation for a moving violation
- NOTE: Medical attention is not to be delayed in order for these tests to be completed. If tests are not completed, the employer must have a reasonable explanation and document accordingly.
Reasonable Suspicion
An employee is required to submit to reasonable suspicion testing when a *trained supervisor or company official has reason to believe that the employee has violated the prohibitions of CFR 382 subpart. The observations must be based on specific aspects concerning the appearance, behavior, speech, or body odors of the employee and must be documented accordingly.
*Supervisor Training Information
Return to Duty
Subsequent to completing treatment following a positive DOT drug or alcohol test, the SAP will release the driver to the employer and direct that a Return to Duty be conducted before an employee can return to safety-sensitive duties. The Return to Duty test must be collected be a trained collector using DOT’s Directly Observed Collection Procedures. The employer must receive a verified negative RTD test result before allowing the driver to resume safety sensitive functions.
Follow-Up
Upon receipt of a negative Return to Duty test, the employer must direct the driver to complete at least 6 unannounced follow-up tests in addition to required random and post-accident testing during the first 12 months back at work after completing treatment. the DOT qualified SAP will provide the employer with a schedule for testing. The SAP may require more than 6 tests for longer than the 12 month period.
Drugs Included in Testing
- Marijuana
- Cocaine
- Opioids (includes expanded panel of synthetics)
- Phencyclidine
- Amphetamines
- MDMA
- 6Acetylmorphine (6AM) – Heroin
Basic Controlled Substance Testing Procedures
Notification
An employee shall report to a collection facility or alcohol technician as soon as possible following notification that a drug/alcohol screen must be taken.
Collection
Collection of a urine specimen for the purpose of drug testing must be completed using a federal chain of custody form and a split specimen sample kit. All DOT drug screen collections must be collected by DOT qualified Drug Screen Collectors as required by 49 CFR Part 40.33. The donor must remain at the collection facility until a specimen has been provided. After an adequate specimen has been collected, the collector completes a chain of custody form, prepares the specimen and paperwork for shipment. These specimen collection procedures and chain of custody procedures are in place to ensure the specimen’s security is not compromised.
Laboratory Screenings
49 CFR Part 40 sets forth the procedures for drug testing using DHHS certified laboratories. When the specimen arrives at the laboratory, the primary specimen is opened and used for screening. The split specimen is stored at the laboratory. Each specimen undergoes an initial screen. Any specimen found positive by the initial screen must be confirmed by gas chromatography/mass spectrometry (GC/MS) to determine exact levels. Next, the result is reported to the Medical Review Officer at NTA, Inc.
Drug Screen Results
Negative Results
Negative results are received by NTA, Inc. and reported by fax or email to the company’s confidential contacts. All reports are confidential, therefore strict procedures are in place to ensure that only designated company officials receive information regarding test results.
Positive Results
Positive results are processed by NTA, Inc.’s Medical Review Officer following the regulations set forth in 49 CFR part 40. The MRO makes every effort to contact the donor to discuss the possibility of a medical explanation. If no medical explanation is given, the result is verified as positive. When the paperwork is completed, the result is reported verbally to the company’s confidential contact and a written confirmation is sent by mail marked “Confidential”. The same procedure is followed to report the test result if it is confirmed negative by written documentation from a physician.
Split Specimen Testing
When there is no medical explanation for a positive result and the donor feels there has been a possible mistake, the donor has the option of having the split sample sent to a different laboratory for reanalysis. The initial result is still reported as positive to the company, however the company is informed that a reanalysis has been ordered. If the report findings from the second test verify a negative result, the initial result is then verified negative also.
Consequences of a Positive Controlled Substance Test
*for this section “employee” means anyone whose job position requires controlled substance testing under 49CFR
After a verified positive drug screen, the following disciplinary action(s) must be taken:
- If the company policy requires termination, the employee may be terminated but must still be referred to a DOT Qualified Substance Abuse Processions. One may be located at www.saplist.com.
- If the company wishes to continue an employment relationship with the employee, the employee must be removed from safety-sensitive functions and referred to a DOT qualified substance abuse professional for evaluation and treatment. If there is a non-safety sensitive job available, the employee may be allowed to work in that function until evaluation, treatment, and a return-to-duty test has been completed.