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     The Federal Department of Transportation's regulations requiring drug and alcohol testing of commercial motor vehicle drivers became applicable to virtually all employers of all such drivers on January 1, 1996. I have had experience working with various employers of commercial drivers in connection with their preparations or reviews of their drug and alcohol testing programs. It appears that many employers of commercial drivers may not be in compliance with the DOT's regulations or may not be implementing optimal substance abuse programs because:

     A. The DOT's regulations are long and complicated and difficult to fully and properly implement. For example, 49 CFR §382.601(b) requires an employer to furnish to drivers educational materials which include detailed discussions of eleven separate items. See Section 382.601(b).

     B. Many employers have adopted programs provided by various vendors (such as drug testing service providers) without careful attention to the detailed requirements of the DOT regulations.

     C. Many employers have not integrated their DOT testing programs with their other substance abuse policies, their general employment policies, or other legal requirements. For example, under 49 CFR §382.601(c) an employer may include in a substance abuse policy "additional policies or consequences" not specifically required by the DOT regulations. What substance abuse prohibitions or disciplinary actions beyond those specified in the DOT regulations may or should an employer impose on commercial drivers? What substance abuse policies or testing may or should be used with non-drivers? How may an employer integrate its substance abuse policies with the requirements of the ADA, FMLA, and any applicable state drug testing laws? See Section 382.601(c).

     Please contact Lawrence C. Winger, Esq. for help for your organization with the preparation, review, or modification of a commercial driver drug and alcohol testing program, or with the integration of such a program with your organization's other policies and legal requirements.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger and the reader. All information (except the regulation excerpts below) is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000

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(b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following:

(1) The identity of the person designated by the employer to answer driver questions about the materials;

(2) The categories of drivers who are subject to the provisions of this part;

(3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part;

(4) Specific information concerning driver conduct that is prohibited by this part;

(5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under this part, including post-accident testing under Sec. 382.303(d);

(6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by Sec. 382.303(d) of this part;

(7) The requirement that a driver submit to alcohol and controlled substances tests administered in accordance with this part;

(8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;

(9) The consequences for drivers found to have violated subpart B of this part, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under Sec. 382.605;

(10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04;

(11) Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver's or a coworker's); and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and or referral to management.

(c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.

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