Applicability of Testing Regulations
Which drivers are to be included in a alcohol and controlled substances testing program under the Federal Highway Administration (FHWA)’s rule?
Guidance: Any person who operates a Commercial Motor Vehicle (CMV)s, as defined in §382.107, in intrastate or interstate commerce and is subject to the CDL requirement of 49 CFR part 383.
Driver Self Admission of Alcohol Misuse or Drug Use
If an employee admits to alcohol misuse or drug use, when is it appropriate for the employer to apply the exception in §382.121?
Guidance: In order for the exception in §382.121 to be used, all the provisions and conditions of this section must be met. In this instance, none of the consequences of prohibited conduct would apply, and the employer would not report the admission to any subsequent employers. However, if any of the conditions in §382.121 is absent (for example, if the employer has no existing written policy, or if the driver fails to follow the employer’s treatment program), then the exception may not be used, and the driver would be fully subject to all the consequences of prohibited conduct, including referral and treatment in accordance with Part 40 Subpart O, and reporting to subsequent employers in accordance with §40.25 and §391.23(e).
Note: the exception regulation is as follows:
§382.121 Employee admission of alcohol and controlled substances use.
(a) Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of this part and part 40 of this title, provided that:
(1) The admission is in accordance with a written employer-established voluntary self-identification program or policy that meets the requirements of paragraph (b) of this section;
(2) The driver does not self-identify in order to avoid testing under the requirements of this part;
(3) The driver makes the admission of alcohol misuse or controlled substances use prior to performing a safety sensitive function (i.e., prior to reporting for duty); and
(4) The driver does not perform a safety sensitive function until the employer is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.
(b) A qualified voluntary self-identification program or policy must contain the following elements:
(1) It must prohibit the employer from taking adverse action against an employee making a voluntary admission of alcohol misuse or controlled substances use within the parameters of the program or policy and paragraph (a) of this section;
(2) It must allow the employee sufficient opportunity to seek evaluation, education or treatment to establish control over the employee’s drug or alcohol problem;
(3) It must permit the employee to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert, i.e., employee assistance professional, substance abuse professional, or qualified drug and alcohol counselor;
(4) It must ensure that:
(i) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty test with a result indicating an alcohol concentration of less than 0.02; and/or
(ii) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty controlled substance test with a verified negative test result for controlled substances use; and
(5) It may incorporate employee monitoring and include non-DOT follow-up testing.
Alcohol Use Definition
What is meant by the terms “use alcohol” or “alcohol use”? Is observation of use sufficient or is an alcohol test result required?
Guidance: The term “alcohol use” is defined in §382.107. The employer is prohibited in §382.205 from permitting a driver to drive when the employer has actual knowledge of the driver’s use of alcohol, regardless of the level of alcohol in the driver’s body. The form of knowledge is not specified. It may be obtained through observation or other method.
Prescription Drug Use – Adverse Affects
Must a physician specifically advise that substances in a prescription will not adversely affect the driver’s ability to safely operate a Commercial Motor Vehicle (CMV) or may a pharmacist’s advice or precautions printed on a container suffice for the advice?
Guidance: A physician must specifically advise the driver that the substances in a prescription will not adversely affect the driver’s ability to safely operate a Commercial Motor Vehicle (CMV).
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