A commercial driver must be drug‑free in order to be qualified to drive a motor vehicle, and motor carriers are required by federal law to conduct certain forms of drug and alcohol testing for commercial drivers. This article briefly summarizes the U.S. Department of Transportation (“DOT”) mandatory drug and alcohol testing requirements for commercial drivers.

Commercial Drivers Subject to DOT Drug and Alcohol Testing
DOT drug and alcohol regulations apply to drivers subject to CDL requirements. A driver is subject to CDL requirements if he/she operates a commercial motor vehicle (“CMV”), defined as a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

1. Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
2. Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or
3. Is designed to transport 16 or more passengers, including the driver; or
4. Is of any size and is used in the transportation of hazardous materials that must be placarded under U.S. DOT HazMat regulations.

49 C.F.R. § 383.5 (defining commercial motor vehicle); 49 C.F.R. § 383.5 (“Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.”).

Employers Covered by DOT Drug and Alcohol Testing Requirements
An employer is subject to DOT’s drug and alcohol regulations even if the employer has only one employee who is subject to CDL requirements, and these regulations apply regardless of whether the vehicle crosses state lines (i.e., both interstate and intrastate vehicles are covered).
Further, DOT drug and alcohol testing requirements do apply to transportation performed by state and local governments. 49 C.F.R. § 382.103(c) (“The exceptions contained in § 390.3(f) of this subchapter do not apply to this part. The employers and drivers identified in § 390.3(f) of this subchapter must comply with the requirements of this part, unless otherwise specifically provided in paragraph (d) of this section.”).

Required DOT Drug and Alcohol Testing
Under Chapter 382 of the FMCSA regulations, motor carriers are required to conduct drug and alcohol tests under the following circumstances:

• Pre-Employment Testing. Prior to beginning employment, motor carriers must conduct a pre-employment drug test of driver applicants. No pre-employment alcohol testing is required. 49 C.F.R. § 382.301.

• Post-Accident Testing. Following certain accidents involving CMVs, the driver of that CMV must be tested for drugs and alcohol. This is referred to as “post-accident” testing. 49 C.F.R. § 382.303. The types of accidents requiring post-accident testing are outlined in the FMCSA regulations.

• Random Testing. Motor carriers must conduct “random testing” for drugs and alcohol with selection dates spread throughout the year. Annual testing rates are 50% of the average number of driver positions for drugs and 10% of the average number of driver positions for alcohol. 49 C.F.R. § 382.305.

• Reasonable Suspicion Testing. When employers have a “reasonable suspicion” that a driver is under the influence of drugs or alcohol, they must conduct reasonable suspicion testing. All supervisors of commercial drivers must be trained to make determinations of “reasonable suspicion.” 49 C.F.R. § 382.307.

• Return-to-Duty Testing. When a driver violates a “prohibited conduct” regulation under the DOT or tests positive for drugs or alcohol, the employer must give the driver a “return-to-duty” test before the driver is allowed to operate a CMV again. 49 C.F.R. § 382.309.

• Follow-Up Testing. After returning to duty following a “prohibited conduct” violation or testing positive for drugs or alcohol, the employer must conduct “follow-up testing” of the driver. The frequency of the testing is determined by the Substance Abuse Professional (“SAP”) who evaluated the driver, but at minimum, the employer is required to conduct six (6) follow-up tests during the year. 49 C.F.R. § 382.311.

Other DOT Drug and Alcohol Testing Requirements
In addition to the mandatory drug and alcohol tests summarized above, employers of commercial drivers are also required to:

• Adopt a written drug and alcohol testing policy prior to engaging in any testing. 49 C.F.R. § 382.601;

• Distribute a drug and alcohol policy to all drivers and obtain a signed acknowledgment form to be kept in the driver’s file. 49 C.F.R. § 382.601;

• Obtain drug and alcohol testing records from applicants’ previous employers before making hiring decisions. 49 C.F.R. § 382.413;

• Provide notice of test results to drivers within time periods defined by law. 49 C.F.R. § 382.411;

• Remove a driver who tests positive from safety-sensitive functions and provide the driver with a list of available alcohol and chemical dependency resources. 49 C.F.R. § 382.501;

• Ensure any driver removed from duty is evaluated by a SAP and passes a return-to-duty test. 49 C.F.R. § 382.503; and

• Keep drug and alcohol testing records strictly confidential. 49 C.F.R. § 382.405.

Potential Consequences for Violating DOT Drug and Alcohol Testing Rules
The DOT imposes significant fines and penalties for violations of the drug and alcohol testing rules. Further, in the event that a motor carrier fails to test a driver when it is supposed to, the employer could face significant liability under the doctrines of negligent retention and negligent entrustment if that driver causes an accident while under the influence of drugs or alcohol. The best way to reduce potential liability is to adopt and follow a federally mandated drug and alcohol testing policy that has been reviewed by legal counsel.

Overlap With Minnesota Drug and Alcohol Testing in the Workplace Act
Minnesota employers should be aware that in addition to federal law, workplace drug and alcohol testing is also regulated at the state level. In Minnesota, the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) governs most drug and alcohol testing conducted by employers. See Minn. Stat. § 181.950 -181.957

Fortunately, the Minnesota legislature has exempted mandatory drug and alcohol testing of commercial drivers from the requirements of DATWA, provided that the employer follows federal standards for DOT workplace drug and alcohol testing programs set forth in 49 C.F.R. Part 40. See Minn. Stat. § 221.031, subd. 10 (“The state of Minnesota, a political subdivision of the state, or any person required to comply with the alcohol and controlled substances testing requirements of Code of Federal Regulations, title 49, part 219, 382, 653, or 654, is exempt from sections 181.950 to 181.957 [DATWA] if the testing also complies with the procedures for transportation workplace drug and alcohol testing programs in Code of Federal Regulations, title 49, part 40.”).

Minnesota employers that test commercial drivers for controlled substances other than marijuana metabolites, cocaine metabolites, amphetamines, opiate metabolites, and phencyclidine (PCP), however, must comply with DATWA. See Minn. Stat. § 221.605, subd. 1(b) (“An interstate carrier or private carrier engaged in interstate commerce who complies with federal regulations governing testing for controlled substances and alcohol is exempt from the requirements of sections 181.950 to 181.957 [DATWA] unless the carrier’s drug testing program provides for testing for controlled substances in addition to those listed in Code of Federal Regulations, title 49, section 40.85. Persons subject to this section may test for drugs, in addition to those listed in Code of Federal Regulations, title 49, section 40.85, only in accordance with sections 181.950 to 181.957 and rules adopted under those sections.”).

Conclusion
Minnesota employers whose employees operate commercial motor vehicles must comply with the complex DOT mandatory drug and alcohol testing requirements. Further, if their testing programs go beyond the mandatory requirements of federal law, they must also comply with the Minnesota Drug and Alcohol Testing in the Workplace Act. In order to ensure compliance with federal and state legal requirements while minimizing the risk of a lawsuit, employers should have their drug and alcohol testing programs periodically reviewed by a Minnesota drug and alcohol testing attorney.

About the Author:
Minnesota employment attorney Craig W. Trepanier has extensive experience advising clients on workplace drug and alcohol testing matters including drafting DOT and Non-DOT drug and alcohol testing policies. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm and Minnesota transportation law firm located in Minneapolis, Minnesota.