Common FMCSA Compliance Problems: Alcohol & Drug Screens
The FMCSA requires motor carriers to submit drivers to alcohol and drug screens under certain circumstances, but random and for-cause screening is a common area of non-compliance in the trucking industry.
There are several different instances in which the U.S. Department of Transportation and the State of Alabama, by way of the FMCSR, require commercial drivers submit to drug screens. The most common testing circumstances are as follows: (1) pre-employment; (2) random; (3) reasonable suspicion; and (4) post-accident. Subsequent to a drug or alcohol screening of its driver and regardless of the reason for testing, a motor carrier is required to keep the results of a negative test for a minimum period of 1 year and is required to retain the results of a positive test for a minimum period of 5 years. If a driver refuses to undergo alcohol and/or drug testing, a record of the driver’s refusal must be maintained for 5 years.
Pre-Employment Drug Screens
Pursuant to 49 C.F.R. § 382.301, before a commercial driver performs any “safety-sensitive functions” (to include driving) for a motor carrier, the driver is to be tested for controlled substances, and unless the driver returns negative results, he cannot perform safety-sensitive functions, including operating a commercial motor vehicle. Additionally, a motor carrier may, but is not required to, perform pre-employment alcohol testing. If done, alcohol testing may only be conducted after a contingent offer of employment is made and must be done in accordance with the procedures set forth in the FMCSR.
Random Drug Screens
A motor carrier is required annually to administer alcohol tests to a minimum of 10% of the average number of its driver positions. The FMCSR mandate that 50% of the average number of a motor carrier’s driver positions be tested annually for controlled substances. [Note: The random controlled substance testing rates for 2018 are only required to be at 25%, for reasons described in this post].
“Reasonable Suspicion” Drug Screens
When a motor carrier has a reasonable suspicion that its driver has violated the FMCSR concerning either alcohol or controlled substances, the motor carrier must require the driver to undergo alcohol or controlled substance testing. “Reasonable suspicion” must be an articulable observation, such as appearance, behavior, speech, or body odor. The observation must be made by a supervisor or company official, and the person making the observation cannot be the person who administers the test. The observing supervisor is to make a written record of his observation, and is further to note if the motor carrier failed to timely administer a required test.
Post-Accident Drug Screens
The Federal Motor Carrier Safety Regulations mandate that in certain instances drivers of commercial vehicles take a urinary drug and alcohol screen after a motor vehicle accident. Following a collision involving one of a motor carrier’s commercial vehicles on a public roadway, the motor carrier must submit its driver for testing “as soon as practical” if the collision involved either:
- The loss of human life, or
- The driver receives a either a citation for alcohol or controlled substance or a moving traffic violation related to an accident involving either:
- Injury to a person requiring medical treatment away from the accident scene, or
- Resulting in one of the involved vehicles incurring disabling damage from the accident that requires the vehicle to be towed from the scene.
Worded differently, if an accident involving a commercial vehicle results in a fatality, a drug and alcohol screen is always required. If there is not a fatality, but there is either a bodily injury that requires immediate medical treatment or property damage significant enough to render a vehicle disabled, a drug and alcohol screen is required only if a citation was issued to the commercial driver for either alcohol/controlled substance or a moving violation.
The requirement for a post-accident drug screen serves the dual purpose of allowing an employer to determine whether drugs and/or alcohol caused or factored into an accident, as well as deterring drug and alcohol abuse: “By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty.”
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 The State of Alabama adopted and demanded compliance with the Federal Motor Carrier Safety Regulations in Alabama Code § 32-9A-2, which reads in part, “[N]o person may operate a commercial motor vehicle in this state, or fail to maintain required records or reports, in violation of the federal motor carrier safety regulations as prescribed by the U.S. Department of Transportation….” Ala. Code § 32-9A-2(a)(1).
 49 C.F.R. § 382.401. For controlled substances, any verified positive result triggers a positive test; for purposes of alcohol testing, a positive result in indicated by a BAC of 0.02 or greater.
 49 C.F.R. § 382.401(b)(1)(iii).
 49 C.F.R. § 382.301(a).
 49 C.F.R. § 382.301(d).
 49 C.F.R. § 382.301(d)(3)-(4).
 49 C.F.R. § 382.305(b)(1).
 49 C.F.R. § 382.305(b)(2).
 49 C.F.R. § 382.307(a)-(b).
 49 C.F.R. § 382.307(a)-(b).
 49 C.F.R. § 382.307(c).
 49 C.F.R. § 382.307(e)(1), (f).
 49 C.F.R. § 382.303.
 For these purposes, a moving violation (i.e., speeding, failure to yield the right of way) is distinguished from a non-moving violation (i.e., overweight vehicle, equipment inspection failure).
 Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 629-30 (1989).
Photo by Alex Dodd.