DOT Drug and Alcohol Testing - Decoded!

Discussion in 'Trucking Industry Regulations' started by The Gryphon, Nov 22, 2011.

  1. SmoothShifter

    SmoothShifter <strong>Defender of the Driveline</strong>

    Sep 10, 2010
    Cohoes, NY
    I'm a little miffed because you're not giving anyone here a lot to work with.

    What State did this happen in?

    Was the refusal to submit to a BAT in your personal vehicle the same as a conviction as a DUI/DWI and therefore.....

    you lost all driving privileges for a year over the refusal?

    What is the charge on your driving record?

    I'm not sure of what D&A program you would have to complete, because the offense did not happen in the course of being on duty or in a CMV.
  2. The Gryphon

    The Gryphon Heavy Load Member

    Nov 3, 2011
    According to CFR 49, Part 40:

    "Subpart O - Substance Abuse Professionals and the Return-to-Duty Process

    § 40.285 When is a SAP evaluation required?

    (a) As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.

    (b) For purposes of this subpart, a verified positive DOT drug test result, a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater, a refusal to test (including by adulterating or substituting a urine specimen) or any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation."


    "Subpart O - Substance Abuse Professionals and the Return-to-Duty Process

    § 40.305 How does the return-to-duty process conclude?

    (a) As the employer, if you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you must ensure that the employee takes a return-to-duty test. This test cannot occur until after the SAP has determined that the employee has successfully complied with prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties.

    (b) As an employer, you must not return an employee to safety-sensitive duties until the employee meets the conditions of paragraph (a) of this section. However, you are not required to return an employee to safety-sensitive duties because the employee has met these conditions. That is a personnel decision that you have the discretion to make, subject to collective bargaining agreements or other legal requirements.

    (c) As a SAP or MRO, you must not make a “fitness for duty” determination as part of this re- evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position."

    As the above is written and based on the limited information provided in the scenario presented, it seems possible that a company could either require the driver to enter the SAP program and complete the "Return To Duty" process or NOT, and still be within the regs.

    In my experience, some companies are EXTREMELY conservative in their attempts to comply with the regs and some aren't.

    So, there are some companies that would require the driver to enter the SAP and complete the "Return To Duty" process and some would not.

    Based on some of the questions, and the phraseology used, that I've had to answer in my recent job search, if I were to have to place a bet, I'd bet that MOST companies would just steer clear of this particular "Driver". But that's just my OPINION, I could be wrong!
    fixer Thanks this.
  3. fixer

    fixer Bobtail Member

    Dec 29, 2011
    Thanks Gryph, thats pretty much the conclusion I drew as well. I think the only reason the company is looking to rehire this driver is he worked there 5yrs with a great record. I dont think the boss realizes what all is involved with bringing him back to work though.

    I wasnt sure if the return to work process applied, as he didnt fail a work related test, meaning he wasnt in a CMV and wasnt a random. I assumed it would require the reinstatement process, but hoped it would not.
  4. The Gryphon

    The Gryphon Heavy Load Member

    Nov 3, 2011
    You're welcome!

    It really depends on how the company interprets the regulations.

    If they interpret that the driver receiving the DUI in the non-CMV means that he/she has "violated DOT drug and alcohol regulations"


    If they determine that DUI in the non-CMV to be is "any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol violation"


    they'll have to use the SAP/Return-To-Duty process if they plan to employ that driver.

    But it's POSSIBLE that they won't see the non-CMV DUI as a violation of the "DOT drug and alcohol regulations".

    All in all, I think that it's UNLIKELY, but POSSIBLE that they'd be willing to put this driver back to work without going through the SAP/Return-To-Duty process. :biggrin_25519:

    Let's put it this way, if I were advising this company, I'd advise them to use the SAP/Return-To-Duty process just as a CYA if they were to really want to employ this driver.
  5. franktaylor

    franktaylor Light Load Member

    Apr 8, 2010
    manchester, tn
    Hey all, I posted this on another thread and someone led me here. great stuff. I have what i think to be a different problem and i'm not sure where i stand....anywyay heree is what i posted..

    i have a question i hope someone could answer. In early oct after coming back to work i was pulled in for a random test. they gave me a urine test. it came back positive for cocaine. evidentally i had a little more of a wild weekend. i'm not denying doing it but i will say i don't remember. again, i know me when i'm really hammered and i'm not going to say i didnt' do it. anyway, to get to the question. i just sent in to get my DAC report and it was on there as an alcohol incident, stating that i blew .04 or higher on a breathilizer, this is not true. however i don't want to call and say anything because i'm assuming a positve alcolhol test is better than cocaine. i'm thinking now where that question is on apps that asks have you ever failed a drug test i am safe to say no.BTW i did all the sap stuff and am approved to go back to work but every app i've filled out so far has asked the drug question and i've answered yes so no one will call me back. i sort of want to call me former company to see if it was the DAC people that screwed up or if my company reported it that way. i was thinking about applying to some more companies and acting as if the drug thing never happened but i'm not sure how to approach this. Should i call my former employer or will that cause them to get the DAC changed? I think i'm bettter off having an alcohol incident over drugs in the long run. anyway, thanks for your input
  6. SmoothShifter

    SmoothShifter <strong>Defender of the Driveline</strong>

    Sep 10, 2010
    Cohoes, NY
    Thanks for pointing that out. :biggrin_25514:

    I'm sure most people who peruse these threads are aware of the fact, albeit sometimes after the damage is done, that a "drug free" lifestyle and a career in transportation is the best way to go. Unfortunately, people who drive trucks are humans, and humans are known to err from time to time.

    9 times out of 10, a person who gets in a position of failing a drug or alcohol test has some underlying issue that brought that about. It's why the return to duty process involves a counselor. They are trying to figure out the root cause of the problem.

    This thread carries the undertone that it is prudent and wise to NOT participate in anything and there is nothing to worry about. Gryphon answers questions from a clinical perspective as someone who worked in the testing industry, and I answer them from the perspective of someone who failed a UA for off duty pot use and lost a 31 year career because of it.

    I fight depression. Is it an excuse? No. Is it a cause? Yes. Could I find a "legal" alternative to it? Been there, done that, have the shirt. I broke out in hives when I tried a pharmaceutical approach to it. Now I just try and manage it with knowledge, and healthy and legal approaches to it.

    Do I smoke pot now? No!! If anything, the loss of my job and all of my financial woes associated with it caused (guess what?) - More depression.

    So when you just tongue in cheek go, "Don't do drugs and everything will be fine....." I kind of chuckle.

    Read frank's post below and I'll highlight what he said.

    He's coming here for answers, not a Nancy Reagan refresher course.

    My failed drug test is nowhere on my DAC. My old company didn't report it. It doesn't make it go away.

    It's this simple. If you heard from an MRO, the positive test was confirmed when it was said and done, you failed a drug test.

    There is probably a clerical error in the DAC reporting, but you still have to list your previous employer and they have to answer "Yes" to a failed drug test. You completed the SAP return to duty process and it was documented that you failed a drug screen. The SAP had to pull your records from your former employer to start the assessment process.

    I don't like to be the bearer of bad news, but falsification of your employment history is against the law. Do I see people get convicted for it? No, and a lot of drivers do it and get away with it.

    Technically, you completed most of the return to duty process, but you are still subject to a minimum of 6 supervised randoms in the next year of employment (not counting any random the company sends you for), and I know the follow up program can stretch for 5 years.

    It's not "all" the SAP stuff. Please contact your SAP and ask him/her for a little more clarification on it. I have not done it yet, because I am debating on whether or not to go back to NY to resume driving.

    Zero tolerance is the norm with the mega carriers and bottom feeders. You have to think outside the box and find someone who will give you a chance on sincerity and a handshake. It won't be easy.

    You're better off being honest and learning your lesson. I am in an ideal position to act like "it never happened", because I was only at the new job 2 months, they didn't report to DAC. I was at the previous job for 5 years in Florida and had a good work history. No points on my CDL, no accidents, no criminal history, etc. I sold cars for a year and hated it, because I was expected to be a liar, and I don't roll that way. Honest car salesman don't make a whole lot of coin.

    It sucks, and I know how frustrating it can be.

    My story is in a couple of my threads here, but it's the same message. I lost everything, including a good slice of dignity, and vaporized 31 years of history. Bankruptcy, turned in my Mustang GT, the whole American dream came to a screeching halt. My only option at this point (other than lying) is a return stint with Foodliner, since I have a good history of pulling tandems with them years ago, or go the owner operator route..... which is going to be tough, because my credit is shot.

    I highlighted your text for Ms. Sbgogirl above. I was a little concerned when I read your initial story, because if you truly didn't remember doing any coke, then you must have been intoxicated beyond belief, and either one would have been cause for concern.

    It's hard to come on here and go, "Yeah, I screwed up" and own it. Was one of the hardest posts I typed out on TTR, because the majority of folks here aren't too understanding and with good cause. That failed drug screen gives the industry a black eye. A CMV Operator who kills or maims with stuff in his/her system that shouldn't be there makes everyone look bad.

    Anyone should know that the minute you participate in taking something that will ding a drug or alcohol test, you are gambling your career, and.....possibly your freedom.

    Lady luck always collects at the end, one way or another.

    In a way, you should consider yourself lucky. If you were in an accident, even if it was the other person's fault, you would instantly be the bad guy when the post accident test results came back.
    franktaylor Thanks this.
  7. The Gryphon

    The Gryphon Heavy Load Member

    Nov 3, 2011
    I know this is sorta old, but I've gotten a few questions on the DOT's stance on "medical marijuana", so I thought I'd post this here.


    Recently, the Department of Justice (DOJ) issued guidelines for Federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.”;marijuana.pdf.

    We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety&#8208;sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire&#8208;armed security personnel, ship captains, and pipeline emergency response personnel, among others.
    We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.

    The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

    That section states:

    § 40.151 What are MROs prohibited from doing as part of the verification process?

    As an MRO, you are prohibited from doing the following as part of the verification process:
    (e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

    Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety&#8208;sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

    We want to assure the traveling public that our transportation system is the safest it can possibly be.

    Jim L. Swart
    Office of the Secretary of Transportation
    Office of Drug and Alcohol
    Policy and Compliance
    Department of Transportation
    October 22, 2009"
  8. The Gryphon

    The Gryphon Heavy Load Member

    Nov 3, 2011
    I think that SmoothShifter answered this far better than I could have seeing as he's actually been through the SAP process and can speak from first hand knowledge.

    I will echo his advice that you NOT MAKE FALSE STATEMENTS on a job application. You might get away with it once or twice, but it will eventually bite you in the #####.

    I would much rather be viewed as someone who made a MISTAKE with drugs/alcohol THAN SOMEONE WHO COMMITS FRAUD and probably can't be trusted.

    Remember, your INTEGRITY can ONLY BE GIVEN AWAY, no one can ever TAKE IT from you!

    I wish you the best.
    franktaylor Thanks this.
  9. Damnnit

    Damnnit Bobtail Member

    Jan 1, 2012
    According to my school the DOT requires all its students to be treated like employee's. We are all required to have a pre screen test before hitting the field and they do keep a DAC. If a student fails a test it will be reported/Filed in our DAC and we will have to leave the school and Do the same thing that anyone else failing one would have to do. My suggestion to anyone who is planning on going to get their CDL is be clean for 5 months so when you complete schooling you will not have any concerns with hair follicle testing which so far many company's are now doing. Some of the better entry level company's I have seen and talked to recruiters from do hair follicle testing. Recruiters and instructors recommend 6 months of being clean for the hair follicle test to be on the more safe side though they claim in special situations a hair follicle test "could" record longer pending on fat content/BMI. ( I do not know the truth in that as I have read 90 days minimum here [ not maximum ] ) Also I have been told a pre employment screen IS reported and a refusal ( shaving all your hair even on toes etc. ) is an automatic fail and is reported as such to your DAC.
  10. SmoothShifter

    SmoothShifter <strong>Defender of the Driveline</strong>

    Sep 10, 2010
    Cohoes, NY
    Which is probably good advice. Typically, anyone who comes here looking to see "who" hair tests is trying to clean up for the UA and now is in a tizzy because of hair follicle testing.

    I'm not 100% sure of how the pre-employment failure of a hair follicle is reportable to DAC, because it is officially a non-DOT test at this juncture.

    Occasional use will typically not show up in a follicle test, ie: if you took a couple of hits off a joint 2 months ago, it's not going to be there. However, in the case of other drugs (cocaine, meth, etc.) which have a small footprint in a UA, they stay in the hair like anything else.

    Habitual use will show up for the length of the hair, but I believe for legal reasons and cost, they only go back 90 days. Could they go back farther? Absolutely.

    I believe that fat content has nothing to do with how the hair retains traces of drugs. Gryphon may correct me on this, because I couldn't find it online. They are also having a problem because African-Americans with oily and coarse hair will hold drugs traces more effectively than a fair skinned Caucasian with blond hair.

    Most carriers state their policies about how and when they test for pre-employment. Six months of clean living prior to launching a career in a CMV is a good rule of thumb. Maintaining that clean lifestyle after the fact is a better idea.

    The g'ubmint is all for the hair follicle testing, because there is less of a chance to circumvent the process. It'll become more common as time goes on.

    I, for one think a hair follicle test would be a cheaper and safe alternative for someone who is going through the follow up of the "return to duty process", because it shows a history of responsibility/rehabilitation/non-"drug abuse" or whatever you want to label it.

    I would much rather pay to have some documentation saying that I haven't done anything for a long time. I wish I could take a years worth of hair right now, test it and march the results into a SAP. I'd grow my hair down to my katookus if they wanted 5 years of history - not a problem.

    It should also be available to those individuals who get false positives, in the rare cases it happens, as a rebuttal to a UA.
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