Carriers are required to create and enforce a drug and alcohol testing policy. Federal regulations require that trucking companies conduct several types of driver testing to ensure that all drivers remain compliant with the FMCSA’s drug and alcohol abuse laws. Specifically, the FMCSA requires carriers’ drug and alcohol enforcement policies to include the following types of testing for their drivers:
Per the FMCSA guidelines, “a new driver must be drug tested with a negative result before an employer can permit him to operate a commercial motor vehicle (CMV).” There are some exceptions to this rule, including if the new driver has participated in a sufficient drug testing program within the previous 30 days and has passed at least one drug test in the past 6 months.
Testing After an Accident
The FMCSA’s Federal Drug and Alcohol Testing Regulations pamphlet requires truck drivers to be tested for the presence of drugs and alcohol in the event of any fatal accident or if they are issued a citation following an accident resulting in injury or the disabling of a vehicle.
All CDL drivers are required to undergo random testing for substance abuse when called upon. Most carriers are required to randomly test at minimum 10 percent of their average number of yearly active drivers for alcohol abuse and 50 percent of their average number of yearly active drivers for controlled substance abuse. These percentage rates are based on the FMCSA’s records of the average reported violation rates for the entire trucking industry.
Reasonable Suspicion Testing
Trucking companies employ supervisors who are trained by the Department of Transportation (DOT) to observe drivers’ behavior and determine whether there is reasonable suspicion for that driver to undergo drug and alcohol testing. Carriers have a duty to act if one of their drivers exhibits suspicious behavior. If a supervisor notices potential signs of drug or alcohol abuse, the supervisor may subject that driver to drug and alcohol testing.
If a CDL driver fails a drug or alcohol test or refuses to take a drug or alcohol test, the Department of Transportation (DOT) guidelines require the employer to immediately remove that driver from safety-sensitive functions. There are a number of steps that a driver must take before being able to return to work following a failed or refused test, but the final step in this process is for a driver to undergo a final return-to-duty test.
Provided that a driver has been cleared to return to work by a Substance Abuse Professional (SAP) after a failed drug or alcohol test and passes a return-to-duty test, the driver is required to undergo a minimum of six unannounced, observed tests during the first 12 months following the return-to-duty test. Follow-up testing is in addition to any random testing selections, and may be prescribed by an SAP for a period of up to five years for drivers who have tested positive or refused a drug or alcohol test.
The FMCSA specifically outlines how these tests are to be conducted, who administers the tests, what they test for, and how the carrier is to handle the test results and records. If a semi-truck driver causes an accident and it is later determined that he or she was impaired, it could potentially be argued that the company’s drug and alcohol testing policies were insufficient, and that the company was therefore liable for not doing enough to prevent an accident from occurring in the first place.
It is not common for carriers to face penalties or fines from the FMCSA for an inadequate drug and alcohol testing policy, though trucking companies do face other consequences for failing to properly implement or enforce them. If it is proven that a carrier did not have sufficient testing and enforcement procedures in place, the company could be held liable for damages resulting from an accident. In the legal world, we call this a failure to establish a program of deterrence.