Transportation Law Hub

As has been the case for a number of years, the Federal Motor Carrier Safety Administration (FMCSA) regulations require employers of commercial motor vehicle (CMV) drivers to test them early and often for alcohol and drugs. 

In fact, employers should have six types of alcohol or controlled substance testing: (1) pre-employment; (2) post-accident; (3) random; (4) reasonable suspicion; (5) return-to-duty; and (6) follow-up. 49 C.F.R. § 382.211.  If drivers refuse to submit to any of these tests, the employer cannot permit the driver to perform any safety-sensitive functions.

1.  Pre-Employment Testing

While pre-employment testing for alcohol is optional, employers need to test CMV drivers for controlled substances prior to the first time the driver ever performs safety-sensitive functions. 49 C.F.R. § 382.301. Drivers may only be exempted from this requirement if he or she has participated in a drug test within the last 6 months or submitted to a random drug test for at least 12 months.

2.  Post-Accident Testing

Following an accident, CMV drivers should be tested for alcohol and controlled substances as soon as practicable. 49 C.F.R. § 382.303.  The driver may not use alcohol for eight hours following the accident, or until the driver undergoes a post-accident alcohol test, whichever occurs first.  49 C.F.R. § 382.209. 

3.   Random Testing

Random testing should be unannounced and done by a “scientifically valid method.” 49 C.F.R. § 382.305.  A valid method could be a computer-based random number generator that matches with the drivers’ Social Security numbers.  Random alcohol testing should be conducted on at least 10 percent of the average number of driver positions, while random controlled substance testing should be conducted on at least 50 percent of the average number of driver positions. 49 C.F.R. § 382.305(b). 

4.   Reasonable Suspicion Testing

Reasonable suspicion may be based on specific and articulable observations of a driver’s behavior, speech or body odors. 49 C.F.R. § 382.307.  The employer or supervisor who determines reasonable suspicion exists may not administer the test.

5.   Return-to-Duty Testing 

A driver may not return to work unless he or she has had a return-to-work alcohol test with a result of less than 0.02 or a negative controlled substances return-to-work test. 49 C.F.R. § 382.201, 49 C.F.R. § 382.605; 49 C.F.R. § 40.305. Employers must provide names, addresses, and telephone numbers of resources for evaluating and resolving problems with controlled substance use. 49 C.F.R. § 40.287.  Further, the driver must be evaluated by a substance abuse professional to determine the need for rehabilitation or follow-up testing. 49 C.F.R. § 40.285.

6.  Follow-Up Testing

At a minimum, drivers must be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the driver’s return to safety-sensitive functions. 49 C.F.R. § 40.307.