|Explore the 25 most commonly misunderstood DOT drug and alcohol regulations in 2023, including recently updated rules on medical marijuana, CBD products, DUI, prescription drugs, and saliva testing.|
DOT Drug and Alcohol Testing Regulations and Consequences 💊
Did you know the FRA requires a blood specimen as part of their post-accident DOT drug testing?
Or, do you live in a state in which cannabis is legal?
The Department of Transportation alcohol and drug regulations are primarily contained in Title 49 of the Code of Federal Regulations (CFR), Parts 40, and parts 382-655, depending on the specific transportation industry.
We carefully read the entire CFR as well as the new CDL drug testing requirements for 2023, so we could create this list of DOT drug and alcohol rules you may not even be aware of.
DOT Alcohol Consumption Regulations and Limits
If a driver receives a DUI in a personal vehicle while off-duty, does the CDL driver need to complete the SAP return-to-duty program?
No, a DUI in a personal vehicle, off-duty, is NOT a violation of FMCSA’s 49 CFR Part 382 and does NOT require the CDL driver to complete a SAP return-to-duty process.
What are the DOT rules for consuming alcohol?
Employees assigned to perform safety-sensitive functions must not use or possess alcohol while assigned to or actually performing safety-sensitive functions.
You must not report for service nor remain on duty if under the influence of alcohol or if you have a blood alcohol concentration of 0.04 or greater.
Furthermore, you must not consume alcohol within 4 hours of reporting for service (or within 8 hours for flight crew members and flight attendants).
DOT Prescription Drug Regulations
Are employees allowed to use prescribed controlled substances while performing safety-sensitive functions?
Employees must not report for duty or remain on duty when using any controlled substance unless it is used according to the instructions of an authorized medical practitioner.
Also, the prescribing physician must have made a good faith judgment that the use and dosage level of the prescribed substance is consistent with the safe performance of your duties.
What if I have prescriptions for controlled substances from different physicians?
If you are being treated by more than one doctor, you must be able to show that at least one prescribing doctor has been informed of all prescribed medications (and OTC medicines) and has determined the usage is consistent with the safe performance of your duties.
Do some agencies have regulations prohibiting the use of specific prescription drugs?
Yes, some prescription drugs and OTC medications are prohibited, so you must review your industry-specific regulations and/or refer to your specific company’s policy regarding prescribed drugs.
DOT Drug and Alcohol Testing
What substances are tested for in a DOT drug test?
DOT drug tests are conducted using urine specimens, and they test for marijuana metabolites, cocaine metabolites, amphetamines (including methamphetamine and MDMA), opioids (such as codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone), and phencyclidine (PCP).
What types of specimens are collected for DOT drug and alcohol testing?
How far back does a DOT drug test go?
The detection window varies depending on the drug: Marijuana can be detected for up to 3 days after one-time use and up to 30 days for chronic users. Amphetamines typically remain detectable for two to three days, cocaine for 1.5 days after one-time use and up to three days for regular users, and opioids can be detected between two to five days, depending on the specific substance.
What are the new CDL drug testing requirements 2023?
Effective January 6, 2023, all CDL drivers must submit to pre-employment drug testing prior to being allowed to operate a CMV. Additionally, CDL drivers must also submit to random DOT drug test throughout their employment.
What does 49 CFR Part 40 mean?
49 CFR Part 40 refers to the Code of Federal Regulations, Title 49, Part 40. It is a set of regulations issued by the U.S. Department of Transportation (DOT) that governs drug and alcohol testing for employees in the transportation industry. These regulations apply to various transportation modes, including aviation, trucking, railroads, pipelines, and maritime.
DOT Medical Marijuana Testing
Is using medical marijuana allowed under DOT regulations?
No, while some states may allow medical or recreational use of marijuana, federal laws and DOT regulations do not recognize any legitimate medical use of marijuana.
Under DOT regulations, the use of marijuana is treated as the use of any other illicit drug, regardless of state laws.
When and Why DOT Drug and Alcohol Testing Occurs
For safety-sensitive employees, staying informed about the different scenarios under which DOT drug and alcohol testing is mandated is crucial.
A positive drug test result, an alcohol concentration of .04 or more or a drug test refusal requires the driver to be immediately removed from operating any commercial vehicle. The employer must provide the driver with a list of DOT authorized SAPs from which to choose to begin the DOT SAP return-to-duty process.
Also, we’ll look into the obligations and responsibilities of employees during the FMCSA drug and alcohol policy scenarios per the CFR.
When are safety-sensitive employees subject to drug or alcohol testing?
DOT safety-sensitive employees are subject to drug or alcohol testing in the following situations: Pre-employment, Reasonable Suspicion/Cause, Random, Return-to-Duty, Follow-up, and Post-Accident.
DOT Pre Employment Drug Testing
What is pre-employment testing and when is it required?
Pre-employment testing is required for new hires or employees transferring from a non-safety-sensitive position to a safety-sensitive position. The process involves submitting to a drug test (and alcohol test, if requested by employer).
An employee can only begin performing safety-sensitive functions after the employer receives a negative drug test result (and a negative alcohol test result, if administered).
DOT Reasonable Suspicion Drug Testing
Can an employee be tested based on reasonable suspicion or cause?
Yes, a DOT employee can be tested based on reasonable suspicion or cause when one or more trained supervisors reasonably believe that the employee is under the influence of drugs or alcohol.
This suspicion must be based on observations concerning the employee’s appearance, behavior, speech, and smell that are usually associated with drug or alcohol use. A hunch or guess is NOT sufficient to require testing.
DOT Random Drug Testing
What are the rules for random drug and alcohol testing at work?
Random drug and alcohol testing is unannounced and can occur just prior to, during, or just after performing safety-sensitive functions.
Under DOT regulations, the selection process for random testing must be truly random, ensuring that each employee has an equal chance of being selected.
Employees are notified just before the testing event and must promptly report to the testing location.
Can a supervisor or manager select an individual for random testing based on a personal bias?
No, a manager, supervisor, official or agent may not select an individual for testing based on personal preference.
The selection process for random testing must be truly random, ensuring that each employee has an equal chance to be selected and tested.
DOT Post Accident Drug Testing
What happens if you are involved in an accident while performing safety-sensitive functions?
If an employee is involved in an accident or event that meets certain criteria set by the DOT agency, a post-accident drug and alcohol test will be required.
The employee is obligated to remain available for this testing and is not permitted to refuse it.
What is different about post-accident testing in the Federal Railroad Administration (FRA)?
In post-accident testing, the Federal Railroad Administration (FRA) requires a blood specimen for drug testing in addition to the standard drug and alcohol testing.
Refusing a DOT Drug Test
What is considered a refusal to undergo drug testing under DOT regulations?
A refusal to undergo drug testing under DOT regulations includes the following scenarios:
1. Failure to appear for the test after being directed to do so.
2. Not staying at the testing site until the testing process is complete.
3. Not providing a urine sample for the test.
4. Not allowing observation or monitoring while providing a urine sample in certain cases.
5. Providing an adulterated or substituted specimen.
6. Not cooperating with any part of the testing process, such as emptying pockets when directed.
7. Possessing or wearing a prosthetic or other device that could interfere with the collection process.
8. Admitting to adulterating or substituting the specimen.
Refusing a DOT Alcohol Test
What constitutes a refusal to undergo alcohol testing under DOT regulations?
A refusal to undergo alcohol testing under DOT regulations includes:
1. Failure to appear for the test when directed.
2. Failure to stay at the testing site until the testing process is complete.
3. Failure to sign Step #2 of the ATF (Alcohol Testing Form).
4. Failure to provide a breath sample for the test.
5. Not providing a sufficient breath sample and lacking a valid medical explanation.
6. Not undergoing a medical evaluation as part of “shy lung” procedures.
7. Not cooperating with any part of the testing process.
What are the consequences if I test positive, refuse a test, or violate an agency-specific drug and alcohol rule under DOT regulations?
If you test positive, refuse a test, or violate an agency-specific drug and alcohol rule:
1. You will be immediately removed from DOT-regulated safety-sensitive functions.
2. You cannot return to performing DOT-regulated safety-sensitive duties until you have undergone an evaluation by a 3. Substance Abuse Professional (SAP), completed any education, counseling, or treatment prescribed by the SAP, and provided a negative test result for drugs and/or a test result of less than 0.02 for alcohol.
4. Upon return, you will be subject to unannounced testing for drugs and/or alcohol no less than 6 times during the first 12 months, with the possibility of continued unannounced testing for up to 60 months, as prescribed by the SAP.
Role of the Substance Abuse Professional (SAP)
How can a Substance Abuse Professional (SAP) help someone who tests positive or refuses to take a DOT drug or alcohol test?
A SAP will perform an in-person evaluation with the employee to determine the severity drug and/or alcohol-related issues. The SAP will then prescribe education, counseling, or treatment as necessary.
The employee cannot return to DOT-regulated safety-sensitive duties until they have successfully completed the prescribed intervention and provided a negative test result for drugs or alcohol.
DOT Return to Duty Process
Can an employee return to safety-sensitive duties immediately after a positive DOT test or refusal to test?
No, you cannot return to safety-sensitive duties immediately after a positive test or refusal to test.
You must first undergo an evaluation by a Substance Abuse Professional (SAP), successfully complete any prescribed education, counseling, or treatment, and provide a negative drug test and/or an alcohol test result of less than 0.02.
How many unannounced drug and/or alcohol tests must be completed in the first 12 months upon returning to safety-sensitive duties after a DOT positive test or refusal?
Upon returning to safety-sensitive duties after a positive test or refusal, you must undergo no less than 6 unannounced drug and/or alcohol tests during the first 12 months of active service.
How can an employee find a DOT Qualified SAP if you violate a DOT drug or alcohol rule?
If an employee violates a DOT drug or alcohol rule, the employer is required to provide the employee with a list of names, addresses, and phone numbers of Substance Abuse Professionals (SAPs) that are available and acceptable to the employer even if the employee is terminated.
Failed DOT Drug and Alcohol Test Consequences
Will an employee automatically lose their job if they violate DOT drug and alcohol regulations?
DOT regulations do not specify employment actions such as hiring, firing, or granting leaves of absence – these decisions may depend on company policy or employment agreements.
However, employers are required to immediately remove employees from performing DOT safety-sensitive jobs if they violate drug and alcohol regulations.
Are Substance Abuse Professionals (SAPs) advocates for the employee or the employer?
Neither. SAPs are not advocates for the employee nor the employer. SAPs make return-to-duty recommendations based on their professional and ethical standards.
If a pilot violates DOT drug and alcohol regulations, who must approve their return to duty?
For pilots, even if a Substance Abuse Professional (SAP) believes they are ready to return to duty, the SAP cannot return a pilot to duty without the prior approval of the FAA’s Federal Air Surgeon.
What is Return-to-Duty drug and alcohol testing and when is it required?
The Return-to-Duty drug and alcohol test is required for employees who have previously violated the prohibited drug and alcohol rules and are returning to safety-sensitive functions for any DOT-regulated employer.
This test must be conducted under direct observation before the employee resumes safety-sensitive duties.
What determines the amount and frequency of follow-up testing after a violation of drug and alcohol rules?
The amount and frequency of follow-up testing are determined by a Substance Abuse Professional (SAP).
The SAP decides how many times the employee will be tested (minimum of six times in the first year), for how long (up to 5 years), and for what substances (drugs, alcohol, or both).
Substance Abuse Professionals (SAPs) play a critical role in the DOT’s drug and alcohol testing program.
Understanding their role, qualifications, and the limitations of their authority can help both employers and employees navigate the complexities of drug and alcohol violations in DOT-regulated safety-sensitive positions, particularly FMCSA drug testing regulations.
It’s important to recognize that while SAPs are integral to the evaluation process, they do not serve as advocates for either party, and reinstatement decisions ultimately lie in the hands of employers and, in the case of pilots, the FAA.
If you have questions about DOT regulations, contact the drug and alcohol abatement offices listed in the chart below.
|US Department of Transportation||FAA||Aviation||202-267-8842||faa.gov|
|US Department of Homeland Security||USCG||Maritime||202-372-1033||homeport.uscg.mil|
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