Controlled Substances Alcohol Testing TITLE 49 CFR PART

Controlled Substances & Alcohol Testing TITLE 49, CFR, PART 382 & PART 40

Drug/Alcohol Testing Presentation produced by Department of Public Safety Motor Carrier Compliance Division 959 East Confederate Ave Atlanta, GA 30316 Phone: (404)624 -7210 Fax: (404) 624 -7295 (Revised 10 -1 -05)

This presentation is a summary of the regulations on Controlled Substances and Alcohol Testing, not an exact restatement of the regulations.

Purpose of Part 382 To establish programs designed to help prevent accidents and injuries resulting from: • The misuse of alcohol or • The use of controlled substances by drivers of commercial motor vehicles.

Who Is Affected By These Rules? Safety-sensitive employees in transportation who operate commercial motor vehicles requiring a Commercial Drivers License (CDL). Safety-sensitive functions?

Safety Sensitive Functions means: All time from the time a driver begins to work or in readiness to work until the time he/she is relieved of all responsibility. Safety-sensitive functions shall include all time spent: § At an employer or shipper plant, terminal, facility, or other property waiting to be dispatched, etc. ; § Inspecting or servicing CMV equipment;

Safety Sensitive Functions Means: (continued) § In, upon or driving any CMV except time spent resting in a sleeper berth; § Loading or unloading a vehicle, supervising, attending, or assisting in the loading or unloading, or in giving or receiving receipts for shipments loaded or unloaded; and § Repairing or remaining in attendance upon a disabled vehicle. (§ 382. 107)

Examples of Drivers and Employers Who Are Subject to These Rules § § § § § Federal, State, and local governments Apiarian industry (Beekeepers) For-Hire Motor Carriers Private Motor Carriers Civic Organizations Churches Indian Tribes Farmers and Custom Harvesters Any other person required to possess a Commercial Driver’s License (§ 382. 103)

History of Testing Programs: • Controlled Substances testing began in 1989. • Alcohol testing started in 1996. • Implementation of these programs is required before you put your trucks on the road. (§ 382. 115)

What Drugs Are Tested for: • • • Marijuana Cocaine Amphétamines Opiates (including heroin) Phencyclidine (PCP)

Who Reviews and Interprets the Laboratory Results? • All drug test results are reviewed and interpreted by a physician (Medical Review Officer (MRO)) before they are reported to the employer.

Who Reviews and Interprets the Laboratory Results? (continued) • If the laboratory reports a positive result to the MRO, the MRO: – contacts the driver (in person or by telephone) and – conducts an interview to determine if there is an alternative medical explanation for the drugs found in the driver’s urine specimen.

• If the test is positive for cocaine and marijuana, the carrier will be contacted, otherwise, the driver will be contacted. • The driver has 72 hours to respond before the carrier is contacted.

Who Reviews and Interprets the Laboratory Results? (continued) If the driver provides appropriate documentation and the MRO determines that it is legitimate medical use of the prohibited drug, the drug test result is reported as negative to the employer.

Type of Test Item Opiates § 40. 33(d) Alcohol • • • Pre-employment. . Post-accident. . . . Random. . . Reasonable suspicion Return-to-duty. . . Follow-up. . Controlled Substance No Yes Yes (10%) Yes (50%) Yes When required

Required Tests: • Pre-employment testing: Prior to the first time a driver performs safetysensitive functions for an employer, the driver shall undergo testing for controlled substances.

Required Tests: Pre-employment testing: (continued) No employer shall allow a driver to perform safety -sensitive functions unless the driver has received a controlled substances test result from the MRO indicating a verified negative test. An employer is not required to administer preemployment alcohol tests (§ 382. 301(e)).

Post-accident testing:

Post-accident testing As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test each surviving driver for alcohol and controlled substances: • if the accident involved the loss of human life; or

Post-accident testing…continued • if a citation under State or local law was issued within 8 hours for a moving violation arising from the accident, if the accident involved: – Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

Post-accident testing…continued – One or more vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle. Joe’s Tows Waco, GA US DOT 000000

Post-accident alcohol tests: Alcohol tests should be conducted within 2 hours of the accident. If the alcohol test is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered. (continued)

Post-accident testing…continued If a test is not administered within 8 hours following the accident: • the employer shall cease attempts to administer an alcohol test and • shall prepare and maintain the same record as mentioned above. Records shall be submitted to the FMCSA upon their request. (§ 382. 303(b)(1))

Post-accident drug tests: A controlled substances test should be conducted within 32 hours of the accident. If the test is not administered within 32 hours the employer must cease attempts and prepare and maintain on file a record stating the reasons the test was not promptly administered.

A driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing.

Post-accident…. continued An employer shall provide drivers with necessary post-accident information, procedures and instructions, prior to the driver operating a CMV, so the drivers will be able to comply with these requirements. (§ 382. 601)

Post-accident testing…continued Wise plan… It would be wise to plan for tests away from the place of business by getting a list of collection sites around the country (or state) from your drug testing service and by having pre-printed copies of collection forms in the truck for the driver to take to those sites.

Post-accident testing…continued Wise plan… Also, place on board a post-accident collection kit, pre-printed with motor carrier’s normal MRO, so that the sample will be processed by the motor carrier’s regular laboratory even though the sample is collected at a remote location.

Post-accident testing…continued Wise plan… A motor carrier may accept the results of a breath test for alcohol or urine test for drugs from the law enforcement agency, provided the test conforms to 49 CFR Part 40. Warning: Law enforcement administered tests may not meet the requirements for these rules. The employers need to have their own tests conducted in order to comply with these rules.

Random testing: Every driver is required to submit to random alcohol and controlled substance testing. (§ 382. 305)

Random testing…continued – The minimum annual percentage rate for random alcohol testing shall be 10 % of the average number of driver positions. – The minimum annual percentage rate for random controlled substances testing shall be 50 % of the average number of driver positions.

Random testing … continued The selection of drivers for random alcohol and controlled substances testing shall be by a scientifically valid method, such as: – a random number table or – a computer-based random number generator that is matched with the drivers Social Security number, payroll identification number, or other comparable identifying numbers.

Random testing … continued Under the selection process used, each driver shall have an equal chance of being tested each time selections are made.

Random testing … continued The employer shall randomly select a sufficient number of drivers for testing during the calendar year to equal an annual rate not less than the minimum annual percentage rate for random alcohol and controlled substances testing.

Random testing … continued If the employer conducts random testing through a consortium, the number of drivers to be tested may be calculated for each individual employer or may be based on the total number of drivers covered in the consortium.

Random testing … continued The employer must ensure that the tests are: § unannounced, and § the dates are spread reasonably throughout the calendar year. Today?

Random testing … continued The employer shall require that each driver who is notified of selection to be tested proceed to the test site immediately…

Random testing … continued. . if the driver is performing a safety-sensitive function (other than driving a CMV) at the time of notification, the employer shall instead ensure that the driver ceases to perform the function and proceeds to the testing site as soon as possible.

Random testing … continued A driver shall only be tested for alcohol while the driver is: – performing safety-sensitive functions, – just before he is to perform safety-sensitive functions, or – just after he has ceased performing safety-sensitive functions.

Reasonable suspicion testing: An employer shall require a driver to submit to alcohol and controlled substances test when the employer has reasonable suspicion to believe that the driver is in violation. (§ 382. 307)

Reasonable suspicion testing …cont’d The employer’s determination must be based on specific, current observations that can be expressed in clear, explicit language about the driver’s: § § appearance, behavior, speech or body odors.

Reasonable suspicion testing …cont’d For controlled substances the observations may include indications of the chronic and withdrawal effects of controlled substances.

Reasonable suspicion testing …cont’d A supervisor or company official must make the required observations and be trained in accordance with § 382. 603. The person who makes the determination that reasonable suspicion exists shall not conduct the test of the driver.

Reasonable suspicion testing …cont’d If an alcohol test required by this section is not administered within 2 hours, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered.

Reasonable suspicion testing …cont’d If an alcohol test is not administered within 8 hours, the employer shall cease attempts and state in the record the reasons for not administering the test.

What to Do in Case of Positive Testing: • Referral to substance abuse professional for evaluation as soon as possible (§ 382. 605); • Negative return-to-duty test; • If a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse or controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up testing as directed by a substance-abuse professional. (§ 382. 605)

Return-to-duty testing: Each employer shall ensure that before a driver returns to a duty requiring the performance of a safety-sensitive function: § For alcohol, the driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0. 02. (§ 382. 309)

Return-to-duty testing: § For controlled substances, the driver must undergo a return-to-duty controlled substances test with a result indicating a verified negative test.

Prohibitions: (§ 382. 201) • No driver shall report for duty or remain on duty while having an alcohol concentration of 0. 04 or greater.

• No driver shall perform safety-sensitive functions within four hours after using alcohol.

• No driver required to take a post-accident alcohol test shall use alcohol for eight hours following the accident, or until he/she undergoes a post-accident alcohol test, whichever occurs first.

Refusal to Submit to a Required Alcohol or Controlled Substances Test: (§ 382. 211) No driver shall refuse to submit to: § a post-accident alcohol or controlled substance test (§ 382. 303), § a random test (§ 382. 305), § a reasonable suspicion test (§ 382. 307), or § a follow-up test (§ 382. 211).

• No employer shall permit a driver who refuses to submit to such tests to perform safety-sensitive functions.

Controlled Substances Use: No driver shall report for duty or remain on duty when the driver uses any controlled substance, except: § Under a doctor’s orders, and § When the driver has been advised by a doctor that the substance will not adversely affect his ability to safely operate a vehicle. (§ 382. 107)

Retention of Records: Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as follows: – The records shall be maintained in a secured location with controlled access. (§ 382. 401)

Retention of Records …continued Five years: – Records of driver alcohol test results indicating an alcohol concentration of 0. 02 or greater, – Records of driver verified positive controlled substances test results, – Documentation of refusals to take required alcohol and/or controlled substances test,

Retention of Records … Five years (continued) – Driver evaluation and referrals, – Calibration documentation, – Records related to the administration of the alcohol and controlled substances testing programs, and – A copy of each annual calendar year summary required by § 382. 403.

Retention of Records … Two years: Records related to the alcohol and controlled substances collection process (except calibration of evidential breath testing devices). One year: Records of negative and canceled controlled substances test results (as defined in Part 40) and alcohol test results with a concentration of less than 0. 02 shall be maintained for a minimum of one year.

Retention of Records … Indefinite period: Records related to the education and training of: Ø Ø breath alcohol technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require the training and for two years thereafter. Carrier is required to maintain all records as outlined in § 382. 401(c).

Location of Records: All required records shall be maintained as required by § 390. 31. Required records shall be made available for inspection at the employer’s principal place of business within two business days after a request has been made by an authorized representative.

Annual Summary of Testing: § 382. 403 An employer shall prepare and maintain a summary of the results of its testing programs when requested by: § the Secretary of Transportation, § any DOT agency, or § any State or local officials with regulatory authority over the employer or any of its drivers.

Inquiries From Previous Employers (§ 382. 413 ) The employer shall inquire about the following information on a driver from the driver’s previous employers, during the preceding two years from the date of application: 1. Alcohol test with a result of 0. 04 or greater 2. Positive controlled substances test results 3. Refusals

Inquiries from previous employers (cont’d) If feasible this information must be obtained and reviewed by the employer prior to the driver performing any safety-sensitive functions.

Inquiries from previous employers (cont’d) If not feasible, it must be obtained and reviewed as soon as possible, but no later than 30 calendar days after the first time the driver performs a safety-sensitive function.

Inquiries from previous employers (cont’d) An employer may not permit a driver to perform a safety-sensitive function after 14 days without having made a good faith effort to obtain this information.

Alcohol Misuse and Controlled Substances Use Information, Training, and Referral: § 382. 601: Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances:

Policy…continued • Each employer shall provide educational materials that explain the requirements and the employer’s policies and procedures with respect to meeting the requirements.

Policy…continued • The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing.

Policy…continued • Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. • The employer shall maintain the original of the signed certificate.

Training for supervisors: 382. 603 • Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and 60 minutes on controlled substances use.

Training for supervisors…continued • The training shall include the • • physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.

Semi-Annual Reports: • The laboratory must provide the employer with an aggregate semi-annual statistical summary of urinalysis testing of the employer’s employees. (40. 111)

Semi-Annual Reports…continued • Quarterly reports shall not contain personal identifying information or other data from which it is reasonably likely that information about individuals’ tests can be readily inferred. (§ 40. 29(g)(6))

Semi-Annual Reports: (continued) Forms: All forms need to show the employer’s name – not the collection site or laboratory name.

Driver Safety: More CMV accidents occur as a result of driver error or fatigue than from any other cause.

Driver Safety…continued In order to improve driver safety, there a number of activities that DPS, in partnership with other agencies, has undertaken to reduce fatal accidents in Georgia.

Reduce fatalities through… • Aggressive traffic enforcement; • Aggressive enforcement of the Records of Duty Status & Hours of Service regulations;

Reduce fatalities through… • Continued focus on CMV inspections; •

Reduce fatalities through… • Increased Compliance Reviews on unsafe motor carriers and Safety Audits on New Entrant Carriers. Jones & Smith Transport

Reduce fatalities through… • Various educational activities designed to enhance safety awareness.

• AND, from safety-oriented partnerships with the transportation industry, each working toward the same goal.

Reduce fatalities… Your presence today, proves that you are equally interested in reducing CMV accidents and saving lives. Thank you for your dedication to highway safety and for your attention here today. Any questions?