Drug and Alcohol Testing for Holders of Commercial Driver’s Licenses

To achieve the goal of a drug- and alcohol-free transportation environment, the Federal Motor Carrier Safety Administration of the U.S. Department of Transportation (“DOT”) has adopted regulations (the “DOT Regulations”) requiring certain commercial motor vehicle operators to be tested for alcohol and drugs. Commercial driver’s license (“CDL”) holders are covered by the DOT Regulations and must submit to pre-employment, post-accident, random, reasonable-suspicion, return-to-duty, and follow-up testing for alcohol and controlled substances.  

This article briefly summarizes the alcohol and controlled-substances testing requirements under the DOT Regulations, which are a matter of utmost importance to CDL holders who make their livelihood operating commercial vehicles and to employers whose businesses involve a trucking component or other use of commercial vehicles. Given the severity of possible penalties for violations of the DOT Regulations, including loss of license for CDL holders and financial and other penalties for such businesses, CDL holders and employers must learn and comply with the regulations. 

CDL Basics 

A CDL is required for operators of any large vehicle, whether such operation is for work or another reason. There are three classes of CDL licenses. Class A is required for anyone driving a vehicle that weighs more than 26,000 pounds and towing more than 10,000 pounds. Class B licenses are required for vehicles that weigh more than 26,000 pounds, but are towing less than 10,000 pounds. Lastly, Class C is the license needed for any vehicle that doesn't meet Class A or Class B requirements but that can hold 16 or more passengers or is designed to transport hazardous materials. 

In New Jersey, non-CDL drivers are over the legal limit if their blood alcohol concentration exceeds 0.08%. However, CDL holders are considered over the limit for licensing purposes if their blood alcohol content is higher than 0.04%. The threshold for CDL holders is significantly lower than the limit of 0.08% under New Jersey law and can be exceeded by imbibing as few as two alcoholic beverages. 

If convicted of a first offense, the holder of a CDL will lose commercial driving privileges for a one-year period. The same penalties apply for a first refusal to provide a breath sample and a first-offense conviction for driving under the influence of a controlled substance. 

What types of testing are required? 

Pre-Employment Testing: With limited exceptions, employers may not allow drivers to perform safety-sensitive functions (as defined in the DOT Regulations) before receiving a negative test result for controlled substances. 49 C.F.R. 382.301. 

Post-Accident Testing: As soon as practicable following an accident involving a commercial motor vehicle engaged in commerce and operating on a public road, employers must screen each driver involved in such an accident for alcohol and controlled substances who (i) were involved in performing safety-sensitive functions if the accident involved the loss of human life; or (ii) received a citation under state or federal law within a certain period of time after the accident, provided the accident caused bodily injury to a person, resulting in immediate medical treatment, or one or more of the vehicles involved in the accident had to be towed from the scene. 49 C.F.R. 382.303. 

Random Testing: Generally, employers must randomly test at least 10% of all of their drivers annually for alcohol and 50% for controlled substances. The random alcohol screening must be performed while a driver is performing a safety-sensitive function or immediately before or after a driver performs a safety-sensitive function. All drivers in the pool for testing must have an equal chance of being selected and tested in each selection period. Employers must use a scientifically-valid method to select employees from the pool, such as a random number table or a computer-based random number generator that is traceable to a specific employee by Social Security number, payroll identification number, or other comparable identifying numbers. 49 C.F.R. 382.305. 

Reasonable-Suspicion Testing: An employer shall require a driver to submit to an alcohol and/or controlled substance test when the employer has reasonable suspicion to believe that the driver has violated the DOT Regulations’ prohibitions concerning alcohol and/or controlled substances. The employer's determination that reasonable suspicion exists to require the driver to undergo an alcohol and/or controlled-substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver, and may include with respect to controlled substances, indications of chronic use, or withdrawal. The required observations shall be made by a supervisor or company official who is trained in accordance with the DOT Regulations. 49 C.F.R. 382.307. 

Return-to-Duty Testing: Each employer shall ensure that, before a driver returns to duty that requires the performance of a safety-sensitive function after engaging in conduct prohibited by the DOT Regulations concerning alcohol or controlled substances, the driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02% and/or the driver shall undergo a return-to-duty controlled-substances test with a result indicating a verified negative result for controlled-substances use. 49 C.F.R. 382.309. 

Follow-up Testing: The employer’s Substance Abuse Professional (as defined in the DOT Regulations) will establish a follow-up testing plan. The employer must ensure that the follow-up testing plan is carried out. A minimum of six tests must be conducted in the first 12 months, and the driver may be subject to this test for a maximum of 60 months. 49 C.F.R. 382.311. 

The preceding is a brief summary of the alcohol and controlled substances testing requirements for CDL holders under the DOT Regulations.  In practice, these requirements are far more complex and onerous. Businesses subject to the DOT Regulations must make sure they are in compliance with the law, and their policies should be regularly reviewed and updated by trained professionals. CDL holders must recognize that even one failed alcohol or controlled-substances test will jeopardize their livelihood. 

Christopher S. Mayer is a Partner in the Labor and Employment Practice Group at McCarter & English, LLP’s Newark, New Jersey headquarters. He regularly writes, lectures, and counsels employers about legal issues involving employee alcohol and substance abuse and other employment issues. Mr. Mayer has been recognized as a Rising Star by New Jersey Super Lawyer in its 2008-2011 editions. Mr. Mayer can be reached at cmayer@mccarter.com.