What Does DOT Drug and Alcohol Compliance Require of Employers?

DOT drug and alcohol compliance rests on two layers of rules. 49 CFR Part 40 sets the testing procedures for the DOT agencies. Each agency rule then says who is covered and when tests happen: 49 CFR Part 382 for FMCSA motor carriers, 14 CFR Part 120 for FAA aviation employers, 49 CFR Part 219 for FRA railroads, 49 CFR Part 655 for FTA transit employers, and 49 CFR Part 199 for PHMSA pipeline operators. The U.S. Coast Guard is part of the Department of Homeland Security, and its rules in 46 CFR Part 16 follow Part 40 for drug testing.

Core employer duties under these rules include:

• A program from day one. An FMCSA employer implements Part 382 on the date it begins commercial motor vehicle operations (49 CFR 382.115).
• A written policy. Employers give covered employees materials that explain the rules and the company's policy (49 CFR 382.601, 49 CFR 655.15).
• A designated employer representative. The DER receives test results, removes employees from safety-sensitive duties and makes required decisions in the testing process. Service agents cannot act as DERs (49 CFR 40.3, 49 CFR 40.15(d)).
• Required tests. The test types are pre-employment, random, reasonable suspicion or reasonable cause, post-accident, return-to-duty and follow-up, and the list varies by agency. Post-accident triggers differ the most, and separate pages cover FMCSA post-accident testing, FTA post-accident testing, FAA post-accident testing and PHMSA post-accident testing.
• Background checks. Employers request drug and alcohol violation records from previous DOT-regulated employers for the prior two years (49 CFR 40.25). For previous FMCSA-regulated employers, motor carriers use the Clearinghouse for this (49 CFR 382.413(b), 49 CFR 382.701(a)).
• Supervisor training. FMCSA requires at least 60 minutes of training on alcohol misuse and 60 minutes on controlled substances use for supervisors of drivers (49 CFR 382.603).
• Removal and return to duty. An employer removes an employee from safety-sensitive functions on the first report of a verified positive result and does not return the employee until the return-to-duty process is complete (49 CFR 40.23).
• Records and reports. Records are kept for set periods in a location with controlled access (49 CFR 40.333), and annual MIS reports are filed when the agency requires them (49 CFR 40.26).

An employer may hire a consortium or third-party administrator to run parts of the program. The employer remains responsible for compliance, and good faith use of a service agent is not a defense in a DOT enforcement action (49 CFR 40.15(c)).