Frequently Asked Questions

DOT agency rules list what an employer's written drug and alcohol policy, or the materials given to covered employees, must cover. The lists are close but not identical.

FMCSA. Motor carriers give each driver educational materials before testing starts and again when a driver is hired or transferred into a CMV position (49 CFR 382.601(a)). The materials must discuss at least:

• The person designated to answer driver questions
• The categories of covered drivers and the safety-sensitive functions that trigger the rules
• Prohibited conduct and the circumstances for each test, including post-accident testing
• Testing procedures and the requirement to submit to tests
• What counts as a refusal to test and its consequences
• Consequences of a violation, including immediate removal and the Part 40 return-to-duty process, and of an alcohol result of 0.02 to less than 0.04
• The effects of alcohol and drug use, signs of a problem, and ways to intervene, including referral to an employee assistance program
• The Clearinghouse reporting requirements (49 CFR 382.601(b))

Each driver signs a certificate of receipt, which the employer keeps (49 CFR 382.601(d)). Any company rule that goes beyond Part 382 must be clearly described as based on the employer's independent authority (49 CFR 382.601(c)).

FTA. The local governing board of a transit employer adopts an anti-drug and alcohol misuse policy statement and makes it available to each covered employee. Its required content covers most of the same items, other than the Clearinghouse and health effects items, and adds a statement that a refusal violates the employer's policy. The employer informs employees of any program elements that FTA does not require (49 CFR 655.15).

PHMSA. Pipeline operators maintain and follow a written anti-drug plan and a written alcohol misuse plan. The anti-drug plan includes compliance procedures, the name and address of each laboratory, the MRO and SAP, and procedures for notifying employees of the plan (49 CFR 199.101, 49 CFR 199.202).

Employee awareness training is a separate requirement covered in DOT drug and alcohol awareness training.

Follow-up testing is the set of unannounced tests an employee takes after returning to safety-sensitive work following a DOT drug or alcohol violation. It comes after the return-to-duty process, in which a substance abuse professional (SAP) evaluates the employee and the employee passes a return-to-duty test with a negative drug result, an alcohol concentration below 0.02, or both, depending on the violation (49 CFR 40.305(a)).

What the SAP decides. The SAP writes a follow-up testing plan and sends it to the designated employer representative (DER). The SAP sets the number and frequency of tests and whether they are for drugs, alcohol or both (49 CFR 40.307(a) to (c)). The minimum is six unannounced follow-up tests in the first 12 months of safety-sensitive duty after the return. The SAP may order more tests in that first year and may extend testing through the following 48 months of safety-sensitive duty, for a possible total of 60 months of safety-sensitive duty (49 CFR 40.307(d)). The SAP may end testing after the first year but cannot reduce the six tests in the first 12 months (49 CFR 40.307(f)).

What the employer does.

• Picks the test dates. The SAP does not set them (49 CFR 40.307(d)(3)).
• Keeps tests unannounced, with no pattern and no advance notice (49 CFR 40.309(b)).
• Does not give the employee the schedule or say how many tests remain (49 CFR 40.307(g)).
• Does not count random tests as follow-up tests (49 CFR 40.309(c)).
• Recollects any cancelled follow-up test, because a cancelled test does not count (49 CFR 40.309(d)).
• Does not add company tests beyond the SAP's plan (49 CFR 40.307(d)(4)).

The plan follows the employee. If the employee changes employers or has a break in service, the remaining follow-up tests carry over. The new employer learns of the plan through the previous employer check under 49 CFR 40.25 (49 CFR 40.307(e)). FMCSA applies these Part 40 rules to drivers (49 CFR 382.311), and FMCSA employers report the completion of follow-up testing to the Clearinghouse (49 CFR 382.705(b)). Follow-up test records and schedules are kept for five years (49 CFR 40.333(a)(1)).

Before an employee performs safety-sensitive duties for the first time, a DOT-regulated employer checks the employee's drug and alcohol testing history with previous DOT-regulated employers. This applies to new hires and to employees transferring into a safety-sensitive position (49 CFR 40.25(a)(1)).

Consent first. The employer obtains the employee's written consent. If the employee refuses consent, the employee cannot perform safety-sensitive functions (49 CFR 40.25(a)(1)).

What to request. For any DOT-regulated employer that employed the employee in the two years before the application or transfer, the employer requests:

• Alcohol tests of 0.04 or higher
• Verified positive drug tests
• Refusals to test, including adulterated or substituted results
• Other DOT drug and alcohol violations
• Documentation of completed return-to-duty requirements, including follow-up tests, for any violation (49 CFR 40.25(b))

The employer also asks the employee whether he or she tested positive or refused a DOT pre-employment test in the past two years for a job the employee did not get (49 CFR 40.25(j)).

Timing. The employer obtains and reviews the information before the employee first performs safety-sensitive functions if feasible. Otherwise, the employee cannot keep performing those functions after 30 days unless the employer has obtained the information or made and documented a good faith effort to get it (49 CFR 40.25(d)).

Violations found. An employee with a prior violation cannot perform safety-sensitive work until the employer also has proof of completed return-to-duty requirements (49 CFR 40.25(e)).

FMCSA employers. For previous employers regulated by FMCSA, a motor carrier meets this requirement through a Clearinghouse query (49 CFR 382.413(b), 49 CFR 382.701(a)). When an applicant has not finished follow-up testing, the employer requests the follow-up testing plan directly from the previous employer (49 CFR 382.413(b)). For history with employers regulated by other DOT agencies, the motor carrier still asks those employers directly (49 CFR 382.413(c), 49 CFR 40.25(a)(3)).

Records. The employer keeps a confidential written record of what it received or of its good faith efforts for three years from the employee's first safety-sensitive work (49 CFR 40.25(i)).

DOT drug and alcohol testing records have minimum retention periods. The baseline for DOT agencies is in 49 CFR 40.333, and some agencies set longer or added periods.

Part 40 baseline (49 CFR 40.333(a)).

• Five years. Alcohol results of 0.02 or greater, verified positive drug results, refusals (including adulterated or substituted results), SAP reports, and follow-up tests and schedules
• Three years. Information from previous employers under 49 CFR 40.25
• Two years. Inspection, maintenance and calibration records for evidential breath testing devices
• One year. Negative and cancelled drug results and alcohol results below 0.02

Agency differences.

• FMCSA. Five years also applies to driver evaluations and referrals, calibration documentation, program administration records and annual summaries. Other collection process records are kept two years. Training records for supervisors, drivers and technicians are kept while the person performs the function plus two years (49 CFR 382.401(b)). Motor carrier recordkeeping is covered in more depth in FMCSA DER training.
• FTA. Collection process and employee training records are kept two years, and copies of MIS reports five years (49 CFR 655.71(b)).
• PHMSA. Under the anti-drug rules, collection process records, training records and records of decisions not to give a post-accident drug test are kept at least three years (49 CFR 199.117(a)). The alcohol rules keep collection and training records two years and post-accident decision records three years (49 CFR 199.227(b)). Pipeline operator records are covered in PHMSA DER training.
• FAA. Copies of annual MIS reports are kept five years, and records of the alcohol testing process and training two years (14 CFR 120.111(f), 14 CFR 120.219).
• FRA. Railroads keep negative and cancelled results for two years instead of one, and test result summaries and annual reports for five years (49 CFR 219.901).
• USCG. Marine employers keep chemical test records as 49 CFR 40.333 provides and make them available to Coast Guard officials on request (46 CFR 16.260).

How records are kept. Records stay in a location with controlled access. A service agent may hold them, but the employer must be able to produce them at its principal place of business in the time the agency requires, such as two business days for an FMCSA request. Electronic records must be easy to access, legible and organized (49 CFR 40.333(c) to (e), 49 CFR 382.401(d)). Records of reasonable suspicion decisions and post-accident decisions are part of the required file (49 CFR 382.401(c)).

The DOT Management Information System (MIS) report is an annual summary of an employer's drug and alcohol testing results for the prior calendar year. Employers use the DOT Drug and Alcohol Testing MIS Data Collection Form and the instructions in appendix J to 49 CFR Part 40, and each DOT agency sets who files and how (49 CFR 40.26). The data also matters for random testing. PHMSA, for example, sets the minimum random testing rate from the industry positive rate drawn from these reports (49 CFR 199.105(c)(2)).

Who files and when.

• FMCSA. A motor carrier prepares a summary when requested. If FMCSA notifies the carrier in January, the report is due by March 15 (49 CFR 382.403(a) and (b)).
• FTA. Each recipient prepares a summary each year and submits it by March 15 when FTA requests it (49 CFR 655.72(a) and (b)).
• FAA. Part 121 certificate holders file each year. Other FAA-regulated employers file if they have 50 or more safety-sensitive employees on January 1 or if the FAA notifies them in writing. Reports are due March 15 (14 CFR 120.119). The FAA report is covered in FAA DER training.
• PHMSA. Operators with more than 50 covered employees file drug and alcohol reports by March 15. PHMSA may require smaller operators to file through a notice in the PHMSA Portal (49 CFR 199.119, 49 CFR 199.229). The PHMSA report is covered in PHMSA DER training.
• FRA. Railroads with 400,000 or more total employee hours file by March 15 (49 CFR 219.800(a)).
• USCG. Marine employers submit drug testing data by March 15. Alcohol data is not reported. An employer with 10 or fewer covered employees that has filed three consecutive reports may stop while it stays at that size (46 CFR 16.500).

Who signs. A service agent, such as a consortium or third-party administrator, may prepare the report. A company official, such as the designated employer representative, certifies its accuracy and completeness (49 CFR 382.403(e), 14 CFR 120.119(c)).

Employees under more than one agency. An employee who performs functions for more than one DOT agency is counted only on the report for the agency under which the employee is randomly tested, which is normally the agency covering more than 50 percent of the employee's duties (49 CFR 382.403(d)).

Copies of MIS reports are kept for five years under the FMCSA, FTA and FAA rules (49 CFR 382.401(b), 49 CFR 655.71(b), 14 CFR 120.111(f)).

FMCSA checks drug and alcohol compliance during the new entrant safety audit. A new motor carrier is monitored for 18 months, and the audit takes place once the carrier has enough records to review, generally after at least 3 months of operation (49 CFR 385.307). Under 49 CFR 385.321(b), a single violation of any of these drug and alcohol rules causes an automatic failure of the audit:

• No testing program. Failing to implement an alcohol and controlled substances testing program (49 CFR 382.115(a) for domestic carriers, 382.115(b) for foreign carriers)
• High alcohol result. Using a driver known to have an alcohol concentration of 0.04 or greater to perform a safety-sensitive function (49 CFR 382.201)
• Refusal. Using a driver who has refused a required test (49 CFR 382.211)
• Positive test. Using a driver known to have tested positive for a controlled substance (49 CFR 382.215)
• No random program. Failing to implement a random testing program (49 CFR 382.305)

These are 5 of the 16 violations in the 385.321 table. The others cover CDLs, disqualified or medically unqualified drivers, insurance, hours of service records and vehicle inspections. An automatic failure, or a lack of basic safety management controls, leads to a notice that the carrier's USDOT new entrant registration will be revoked (49 CFR 385.321(a)).

Each of the five drug and alcohol items comes from Part 382. A carrier implements its program on the date it begins CMV operations, not after its first audit (49 CFR 382.115). Using a driver after a verified positive result, a refusal or a 0.04 result also conflicts with the removal and return-to-duty rules in 49 CFR 40.23, 49 CFR 382.201, 382.211 and 382.215. The driver cannot return until the return-to-duty process is complete.

Part 382 also requires records that show the program is working, such as random selection documents, test results and supervisor training records, and sets how long to keep them (49 CFR 382.401). Records of each Clearinghouse query are kept for three years (49 CFR 382.701(e)).

FMCSA allows motor carriers to set up a voluntary self-identification program that lets a commercial driver admit an alcohol or drug problem before it leads to a violation. A qualified program is optional. When a carrier has one and a driver uses it correctly, the admission does not trigger the referral, evaluation and treatment requirements of 49 CFR Part 382 and 49 CFR Part 40 (49 CFR 382.121(a)).

Conditions for the driver. The exception applies only if:

• The admission follows a written, employer-established program or policy that meets the rule
• The driver does not self-identify to avoid a required test
• The driver admits the use before performing a safety-sensitive function, meaning before reporting for duty
• The driver does not perform safety-sensitive functions until the employer is satisfied the driver has been evaluated and has completed education or treatment under the program (49 CFR 382.121(a))

Required program elements. A qualified program must:

• Prohibit adverse action against a driver who makes an admission within the program
• Give the driver sufficient time to seek evaluation, education or treatment
• Allow return to safety-sensitive duty only after successful completion of education or treatment, as determined by an employee assistance professional, substance abuse professional or qualified drug and alcohol counselor
• Require a non-DOT return-to-duty test before the driver performs safety-sensitive functions, with an alcohol concentration below 0.02, a verified negative drug result, or both (49 CFR 382.121(b))

A program may include monitoring and non-DOT follow-up testing (49 CFR 382.121(b)(5)).

How it relates to actual knowledge. An admission is one way an employer gains actual knowledge of a violation. An admission made under a qualified 382.121 program is excluded from that definition (49 CFR 382.107). It is also excluded from the evidence supporting a Clearinghouse report of an actual knowledge violation (49 CFR 382.705(b)(5)(vi)).

The return-to-duty and follow-up tests under a self-identification program are non-DOT tests, so they follow the non-DOT testing rules and use non-DOT forms (49 CFR 40.13).

Actual knowledge is the FMCSA term for how a motor carrier can learn of a driver's drug or alcohol violation without a positive test. Under 49 CFR 382.107, actual knowledge means the employer knows a driver has used alcohol or controlled substances based on:

• Direct observation. The employer observes the use itself
• Previous employers. Information from the driver's previous employer or employers
• Traffic citation. A ticket, complaint or other document charging the driver with driving a CMV under the influence of alcohol or controlled substances
• Admission. The driver admits alcohol or controlled substance use, except an admission under a qualified voluntary self-identification program in 49 CFR 382.121

Direct observation means seeing the use. It does not include seeing behavior or physical signs that would support a reasonable suspicion test. A supervisor who sees signs of impairment but not use orders a test under 49 CFR 382.307 instead (49 CFR 382.107).

Which violations it covers. The Clearinghouse rule lists four actual knowledge violations (49 CFR 382.705(b)(4)):

• Using alcohol on duty (49 CFR 382.205)
• Using alcohol within four hours before duty (49 CFR 382.207)
• Using alcohol before a required post-accident test (49 CFR 382.209)
• Using a controlled substance, unless properly prescribed and advised as safe (49 CFR 382.213(c))

Sections 382.205, 382.207 and 382.213(c) also bar an employer with actual knowledge from letting the driver perform safety-sensitive functions.

Reporting to the Clearinghouse. The employer reports these violations to the Drug and Alcohol Clearinghouse by the close of the third business day after obtaining actual knowledge (49 CFR 382.705(b)(4)). The report includes:

• The driver's and employer's identifying information
• The date the employer obtained actual knowledge
• Any witnesses and a description of the violation
• Evidence supporting each fact, such as statements, photographs or recordings
• Proof that the employer gave the driver the information reported, if applicable (49 CFR 382.705(b)(5))

Employee statements may support the report, but admissions made under a 382.121 self-identification program are excluded (49 CFR 382.705(b)(5)(vi)).

What follows. The driver may not perform safety-sensitive functions until completing the return-to-duty process in 49 CFR Part 40, subpart O (49 CFR 382.503(a), 49 CFR 40.305).

Subpart B of 49 CFR Part 382 lists the drug and alcohol conduct that FMCSA prohibits for commercial motor vehicle drivers. Most rules bind both sides: the driver may not engage in the conduct, and an employer with knowledge of it may not let the driver perform safety-sensitive functions.

Alcohol prohibitions.

• 0.04 or greater. Reporting for or remaining on safety-sensitive duty with an alcohol concentration of 0.04 or greater (49 CFR 382.201)
• On-duty use. Using alcohol while performing safety-sensitive functions (49 CFR 382.205)
• Pre-duty use. Performing safety-sensitive functions within four hours after using alcohol (49 CFR 382.207)
• After an accident. Using alcohol for eight hours after an accident that requires a post-accident test, or until the test, whichever comes first (49 CFR 382.209)

Controlled substances prohibitions.

• Schedule I. Reporting for or remaining on duty when the driver uses any Schedule I substance listed in 21 CFR 1308.11 (49 CFR 382.213(a))
• Other scheduled drugs. Using other scheduled drugs, unless a licensed medical practitioner familiar with the driver's medical history prescribed it and advised that it will not adversely affect safe CMV operation (49 CFR 382.213(b))
• Positive or tampered test. Reporting for duty or performing safety-sensitive functions after testing positive or adulterating or substituting a specimen (49 CFR 382.215)

Refusal. Refusing a required pre-employment, post-accident, random, reasonable suspicion, return-to-duty or follow-up test (49 CFR 382.211). Refusal is defined in 49 CFR 382.107, 49 CFR 40.191 and 49 CFR 40.261.

An employer may require drivers to report therapeutic drug use (49 CFR 382.213(d)).

Results from 0.02 to less than 0.04. Such a result is not a subpart B violation, but the driver may not perform safety-sensitive functions until the next regularly scheduled duty period and for at least 24 hours, and Part 382 permits no other action based only on that result (49 CFR 382.505).

Consequences. A driver who engages in conduct prohibited by subpart B may not perform safety-sensitive functions until completing the return-to-duty process in 49 CFR Part 40, subpart O (49 CFR 382.503(a), 49 CFR 40.23, 49 CFR 40.305). Employers report alcohol results of 0.04 or greater, refusals that do not require an MRO determination, and actual knowledge violations to the Clearinghouse (49 CFR 382.705(b)). MROs report verified positive, adulterated and substituted drug test results and the refusals they determine (49 CFR 382.705(a)).

A DOT-regulated employer may run its own non-DOT drug and alcohol tests on employees who are also covered by DOT rules, such as a company-wide pre-employment panel or a broader drug panel. 49 CFR 40.13 sets the rules for keeping the two programs apart.

Keep the tests separate. DOT tests must be completely separate from non-DOT tests (49 CFR 40.13(a)). The differences between DOT and non-DOT tests cover panels, forms and procedures.

DOT test first. The DOT test takes priority and is finished before a non-DOT test begins. For urine tests, the collector discards excess urine from the DOT collection and collects a separate void for the non-DOT test (49 CFR 40.13(b)).

No extra testing on DOT specimens. A DOT specimen cannot be tested for additional drugs or made available for DNA or other identity testing. A narrow exception allows medical tests, such as glucose, on leftover urine when the DOT collection is part of a DOT-required physical (49 CFR 40.13(c) and (d)).

Separate forms. The employer cannot use the federal custody and control form (CCF) or the alcohol testing form (ATF) for non-DOT tests, even with DOT references crossed out. Each DOT test uses the CCF or ATF (49 CFR 40.13(g)). Proper chain of custody applies to both programs.

No overriding DOT results. No one can change or disregard a DOT result based on a non-DOT result. For example, an employer cannot set aside a verified positive DOT drug test because the employee brings in a negative test from a personal physician (49 CFR 40.13(f)).

DOT tests only for DOT employees. No one may conduct a DOT test on a person who is not a DOT-regulated employee under the agency rules (49 CFR 40.13(h)). Workers who are not DOT-regulated employees fall under the employer's non-DOT policy, if it has one.

Physical exam tests. A non-DOT test given as part of a physical to decide whether an employee is medically qualified for a license or certificate is not a DOT test and has no consequences under Part 40 (49 CFR 40.13(e)).

When FMCSA driver materials include company policies that go beyond Part 382, those policies must be clearly described as based on the employer's independent authority (49 CFR 382.601(c)).

FMCSA post-accident testing turns on what happened in the accident and whether the commercial motor vehicle (CMV) driver received a citation for a moving traffic violation. The rule applies to an occurrence involving a CMV operating on a public road in commerce (49 CFR 382.303(a) and (b)).

When a test is required. The employer tests each surviving driver for alcohol and controlled substances when:

• A person died. The driver was performing safety-sensitive functions with respect to the vehicle. No citation is needed.
• A person was injured and treated away from the scene. The driver received a citation for a moving traffic violation arising from the accident.
• A vehicle was towed. Any motor vehicle had disabling damage and was towed from the scene, and the driver received a citation for a moving traffic violation arising from the accident (49 CFR 382.303(a) to (c)).

Citation windows. The citation must come within 8 hours of the occurrence for the alcohol test and within 32 hours for the drug test (49 CFR 382.303(a)(2) and (b)(2)).

Time limits.

• Alcohol. If the test is not done within 2 hours, the employer records why. After 8 hours, the employer stops trying and keeps the same record (49 CFR 382.303(d)(1)).
• Drugs. After 32 hours, the employer stops trying and records why the test was not done (49 CFR 382.303(d)(2)).

Driver duties. A driver who must be tested does not use alcohol for 8 hours after the accident or until the alcohol test, whichever comes first (49 CFR 382.209). The driver stays readily available or may be treated as having refused the test. Medical care is not delayed, and a driver may leave the scene to get help or emergency care (49 CFR 382.303(e)).

Employer preparation. The employer gives drivers post-accident information, procedures and instructions before they operate a CMV (49 CFR 382.303(f)).

Police tests. A breath or blood alcohol test or urine drug test by law enforcement with independent authority meets the rule if it follows the applicable testing requirements and the employer obtains the results (49 CFR 382.303(g)).

Exceptions and records. The rule does not apply to occurrences that involve only boarding or alighting from a stationary vehicle, only loading or unloading cargo, or certain passenger car operations not carrying passengers for hire or placarded hazardous materials (49 CFR 382.303(h)). Documents generated in connection with decisions on post-accident tests are kept for at least two years (49 CFR 382.401(b)(2), 49 CFR 382.401(c)(1)(vi)). Testing follows the procedures in 49 CFR Part 40 (49 CFR 382.105).

Post-accident testing by agency. Separate pages cover the FTA post-accident rule, the FAA post-accident rule, the PHMSA post-accident rule and the FRA post-accident rule.

FTA post-accident testing for transit employers is set out in 49 CFR 655.44. Two features shape it: the accident definition depends on the type of transit vehicle, and an employer that decides not to test must document that decision in detail.

What counts as an accident. An occurrence associated with the operation of a vehicle in which:

• A person dies
• A person is injured and immediately receives medical treatment away from the scene
• For a bus, electric bus, van or automobile, any vehicle has disabling damage and is towed from the scene
• For a rail car, trolley car, trolley bus or vessel, the transit vehicle is removed from operation (49 CFR 655.4)

Documenting a decision not to test. A decision not to test is based on the employer's determination, using the best available information at the time of the determination, that the employee's performance could not have contributed to the accident. The decision must be documented in detail, including the decision-making process used (49 CFR 655.44(d)).

Fatal accidents. The employer tests each surviving covered employee operating the transit vehicle at the time (49 CFR 655.44(a)(1)(i)). An operator tested under the FMCSA fatal accident rule in 49 CFR 382.303 is not retested under this section. The employer also tests any other covered employee whose performance could have contributed to the accident, as determined using the best information available at the time of the decision (49 CFR 655.44(a)(1)(ii)).

Nonfatal accidents. The employer tests the operator unless it determines, using the best information available at the time of the decision, that the operator's performance can be completely discounted as a contributing factor. It also tests any other covered employee whose performance could have contributed (49 CFR 655.44(a)(2)(i)). FTA testing does not depend on a citation.

Time limits.

• Drugs. As soon as practicable but within 32 hours of the accident (49 CFR 655.44(b))
• Alcohol. If not done within 2 hours, the employer records why. After 8 hours, the employer stops trying and keeps the record (49 CFR 655.44(a)(2)(ii))

Employee duties. An employee who fails to remain readily available, including failing to tell the employer where he or she is after leaving the scene before testing, may be treated as having refused the test (49 CFR 655.44(c)). Medical care is not delayed for testing (49 CFR 655.44(e)).

Police tests. Tests by federal, state or local officials with independent authority count only when the employer cannot complete its own test in the required time and obtains the results (49 CFR 655.44(f)).

Post-accident testing by agency. Separate pages cover the FMCSA post-accident rule, the FAA post-accident rule, the PHMSA post-accident rule and the FRA post-accident rule.

FAA post-accident testing under 14 CFR Part 120 reaches more than the flight crew. It covers each employee, including a helper or trainee, who performs a safety-sensitive function directly or by contract, including by subcontract at any tier. The nine functions are flight crewmember, flight attendant, flight instruction, aircraft dispatcher, aircraft maintenance or preventive maintenance, ground security coordinator, aviation screening, air traffic control and operations control specialist duties (14 CFR 120.105, 14 CFR 120.215).

What counts as an accident. For Part 120, an accident is an occurrence associated with the operation of an aircraft, between the time any person boards with the intention of flight and the time the last person disembarks, in which a person suffers death or serious injury or the aircraft receives substantial damage (14 CFR 120.7(a)).

Who is tested. The employer tests each employee who performs a safety-sensitive function if that employee's performance either contributed to the accident or cannot be completely discounted as a contributing factor (14 CFR 120.109(c), 14 CFR 120.217(b)(1)). The test is not limited to the flight crew. It reaches any employee performing a safety-sensitive function listed in 14 CFR 120.105 and 120.215, such as aircraft dispatcher or aircraft maintenance duties, when that employee's performance contributed or cannot be completely discounted.

Deciding not to test. A decision not to test must be based on a determination, using the best information available at the time of the determination, that the employee's performance could not have contributed to the accident (14 CFR 120.109(c)). The alcohol rule uses the same standard and refers to the best available information (14 CFR 120.217(b)(1)). Documents generated in connection with decisions on post-accident alcohol tests are kept for two years (14 CFR 120.219(a)(2)(ii)(C)).

Time limits.

• Drugs. As soon as possible but not later than 32 hours after the accident (14 CFR 120.109(c))
• Alcohol. If not done within 2 hours, the employer records why. After 8 hours, the employer stops trying and keeps the record. Records go to the FAA on request (14 CFR 120.217(b)(2))

Employee duties. The employee submits to post-accident testing (14 CFR 120.109(c)). For alcohol testing, an employee who does not remain readily available may be treated as having refused the test. The rule does not delay medical care, and an employee may leave the scene to get help or emergency care (14 CFR 120.217(b)(3)).

Testing follows the procedures in 49 CFR Part 40. A service agent cannot act as the designated employer representative (49 CFR 40.3, 49 CFR 40.15(d)).

Post-accident testing by agency. Separate pages cover the FMCSA post-accident rule, the FTA post-accident rule, the PHMSA post-accident rule and the FRA post-accident rule.

PHMSA post-accident testing is tied to the federal pipeline incident reporting rules rather than to a separate accident definition. For 49 CFR Part 199, an accident is an incident reportable under 49 CFR Part 191 involving gas pipeline or LNG facilities, or an accident reportable under 49 CFR Part 195 involving hazardous liquid pipeline facilities (49 CFR 199.3).

Who is covered. A covered employee is a person who performs a covered function, including people employed by operators, contractors engaged by operators and people employed by those contractors (49 CFR 199.3).

Who is tested. The operator tests each surviving covered employee whose performance of a covered function either contributed to the accident or cannot be completely discounted as a contributing factor (49 CFR 199.105(b)(1), 49 CFR 199.225(a)(1)).

Deciding not to test. A decision not to test must be based on specific information that the employee's performance had no role in the cause or severity of the accident (49 CFR 199.105(b)(1), 49 CFR 199.225(a)(1)). Part 199 words this test differently from the FAA and FTA rules, which refer to the best information available. Records of decisions not to give a post-accident drug or alcohol test are kept for at least three years (49 CFR 199.117(a)(5), 49 CFR 199.227(b)(4)).

Time limits.

• Drugs. As soon as possible but no later than 32 hours after the accident. If the test is not given in that time, the operator stops trying and records the reasons (49 CFR 199.105(b)(2)).
• Alcohol. If not done within 2 hours, the operator records why. After 8 hours, the operator stops trying and records the reasons (49 CFR 199.225(a)(2)).

Employee duties. An employee who fails to remain readily available for alcohol testing, including failing to tell the operator where he or she is after leaving the scene, may be treated as having refused the test. The rule does not delay medical care (49 CFR 199.225(a)(3)).

Plans and contractors. Each operator maintains and follows a written anti-drug plan that conforms to Part 199 and the DOT procedures in 49 CFR Part 40 (49 CFR 199.5, 49 CFR 199.101(a)). An operator may have contractors carry out testing by contract but remains responsible for compliance (49 CFR 199.115).

Post-accident testing by agency. Separate pages cover the FMCSA post-accident rule, the FTA post-accident rule, the FAA post-accident rule and the FRA post-accident rule.

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)).