As of January 1, 1996, all drivers of commercial vehicles (that is, those required to have a commercial driver’s license — CDL) must be included in a mandatory drug and alcohol testing program as described below. These requirements went into effect in 1994 for employers with fifty or more such drivers. As of January 1, 1996, even if you have only one such driver, the testing requirements are mandated.
The purpose of this requirement, administered by the U.S. Department of Transportation (DOT), is to establish programs that help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles.
The requirements apply to every person who operates a commercial motor vehicle in interstate or intrastate commerce and who must have a CDL. In general, camps must have persons with a CDL for all vehicles designed to transport sixteen or more passengers, or whose gross weight exceeds 26,001 pounds or that transport hazardous materials.
Even if a camp has only one such driver, the requirements of the law apply. Further, the law makes no distinction between paid staff or volunteer staff. If a camp has a volunteer driving a church bus, for instance, that driver, by virtue of responsibility and vehicle size, is subject to the testing requirements. If a driver is provided by a company from whom you lease vehicles with drivers, that company is responsible for meeting the testing requirements.
Kinds of Tests Required
Testing for both controlled substances (herein called "drugs") and alcohol are required. The testing for drugs mandates the completion of a DOT Drug Screen which can be conducted by most clinics, physicians, or hospitals. It must be analyzed by a certified laboratory. This test screens for marijuana, cocaine, amphetamines, PCP, and opiates.
The second test is an alcohol test which is to be administered through a breath test or a saliva screen. For the breath test, if you do not wish to purchase breath-testing equipment (at a cost of $3,000 to $4,000), camps can either contract with a nearby company or clinic to do the breath-testing or bring the equipment to the camp at given intervals during the season. Camps have one other option: saliva testing. Test kits can be purchased for $4 to $5 per test. The kits are called Q.E.D. testers. Someone would need to complete a six-hour training course to be a Saliva Testing Technician to administer these tests. Test kits can be purchased in bulk and have a shelf life of about one year.
Many camps are contracting with testing companies to come on site to conduct all required tests and maintain all required records at a flat fee per driver. One such camp is paying about $50 per driver per season for all tests. Contact local bus companies for names of testing companies in your area.
Overview of DOT Requirements
Employees must be restricted from driving if their blood alcohol level is above .04 or while using any controlled substance, except when such use is pursuant to the instructions of a physician who has advised the driver that the substance does not adversely affect the driver’s ability to safely operate a commercial vehicle. In addition, employees whose blood alcohol level is above .02 must be removed from driving responsibilities for eight hours or until another test demonstrates no alcohol.
Therefore, camps utilizing vehicles that require the driver to have a CDL must have a testing program, a record-keeping system, policies to administer the testing program, and a process to remove drivers from service whose tests indicate the inappropriate presence of alcohol or drugs.
DOT requires six different types of testing for drivers. You need to develop a testing program that includes all of the following:
Pre-employment testing for operators of commercial vehicles
Reasonable suspicion testing
Return to duty testing
Pre-Employment Testing — Drugs Only
Any "covered employee" hired after January 1, 1996, to be a driver of a commercial vehicle must undergo drug screening tests prior to the first time the employee assumes driving responsibilities. The term "covered employee" includes job applicants so that these tests can be used in the screening process.
If the employee can document that s/he satisfactorily passed similar tests in the last six months and that there have been no failed tests in that same period, the pre-employment test may be waived for that individual. Employers can and should ask drivers if they have taken the drug and alcohol tests in the last six months and the results of that test(s).
Post-Accident Testing — Drugs and Alcohol
Employers are required to conduct tests for drugs and alcohol within two hours when the driver is in an accident that involves the loss of human life or when the operator receives a citation under state or federal law for a moving violation arising from an accident. Failure to complete these tests in two hours requires the preparation and maintenance of a record indicating why the test was not completed in the time frame.
Further, failure to complete the tests in eight hours also requires the preparation and maintenance of a record indicating why the test was not completed in this time frame, and may cease attempts to administer the test. Any uninjured employee who does not make her/himself available for testing is deemed, as a matter of law, to have refused to submit to the test.
The employer does not have to perform a separate test if law enforcement officials have tested the driver within the stated time frames.
Random Testing — Drugs and Alcohol
Employers are required to perform random testing on a percentage of their affected employees (drivers of commercial vehicles). The percentage is to be determined annually by the DOT. At the present time, the percentages are as follows:
Drug testing 50% of drivers
Alcohol testing 25% of drivers
These tests must be unannounced, and the dates are to be spread reasonably throughout the year or the season. Participants must be randomly chosen utilizing a "scientifically valid method" of choice. The choice could be based on a random selection of social security numbers or some other means of anonymously identifying participants. Each employee must have an equal chance of selection for the test, regardless of previous participation in random testing.
Camps with just a few drivers required to have a CDL may wish to form a consortium of other similar-sized camps to provide a larger pool of persons to be selected at random. The employer then must only provide testing for those persons randomly selected from his/her camp.
Reasonable Suspicion Testing — Drugs and Alcohol
Camps must also test affected employees when there is a "reasonable suspicion," that a driver is in violation of the regulations. This reasonable suspicion must be based on a specific, contemporaneous, articulate observation concerning the appearance, speech or body odors of the driver. Those who appear to be under the influence of drugs or alcohol must be tested.
Directors are specifically prohibited from using signs such as excessive absenteeism or abuse of sick leave or chronic tardiness as reasons for random testing. The objective observation of specific characteristics on a particular day is required. Such observations should be made by a supervisor who has been trained to identify symptoms of drug or alcohol usage. Drug or alcohol possession goes beyond reasonable suspicion, and persons found with these in their possession do not have to be tested — penalties can be instituted immediately based on observation of possession.
Reasonable suspicion testing must occur within eight hours of the observation. If it is determined that the employee has used alcohol or drugs in violation of the policy, the employer must remove the employee from driving for a period of not less than twenty-four hours from the time the employer first develops a reasonable suspicion that drugs or alcohol have been used. This does not mean you are automatically obligated to fire the employee (though you may decide to do that), but they must be removed from their driving responsibilities.
Return to Duty Testing — Drugs and Alcohol
This test occurs after an employee has already failed at least one other DOT alcohol or drug test. Any employee removed from driving duty must pass such a test before resuming responsibility as a driver. This test must show a blood alcohol content of less than .02 and a negative result on the drug test.
Any employee whose results for "return to duty" testing show a blood alcohol content greater than .02 must see a substance abuse professional such as a medical doctor, doctor of osteopathy, licensed or certified psychologist, social worker, or employee assistance professional. This professional shall determine the need for follow-up testing.
The wise camp director will have arranged in advance for testing to occur, and will have made contact with a substance abuse counselor who fits the above criteria to assist when necessary.
After an employee has failed a drug or alcohol test, s/he is subject to further unannounced testing outside of the random testing requirement noted above. If the person was required to see a substance abuse professional, that professional shall be responsible to indicate the necessity of a program of unannounced follow-up testing. Such tests shall be conducted when the employee is about to begin or has just completed driving. Again, results of such follow-up tests must show a blood alcohol content of less than .02 and a negative result to the drug scan.
Record Keeping and Reporting Requirements
To be kept for one year:
Test results that were negative (passing)
To be kept for two years:
Records of the collection process used, which
include collection logbooks, random selection process, reports on calibration of the breath testing equipment (if owned by the camp), documentation of decisions on "reasonable suspicion" testing, explanations of why an employer failed to administer tests in the time limits specified.
Records of training supervisors
To be kept for five years:
Records of employees whose results were positive (failed drug screen) or whose blood alcohol concentration was .02 or greater
Records related to the refusal of any covered employee to submit to a required test
Records of any dispute over the accuracy
of test results
An annual report that summarizes the results of the camp’s alcohol and drug misuse prevention program must be submitted by March 15 if requested by the DOT.
Further, all records concerning the testing process and results must be kept in a secure place with limited access. This is generally considered to be a locked cabinet or room, accessible only to authorized persons. Be aware that employees are entitled to copies of their own test results and records if they so desire. However, employers are not permitted to disclose this information otherwise except as required by law.
Since employers are encouraged to seek test results from previous employers, it is also important to obtain written permission from the employee to release test results for employment purposes to future employers.
Training and Notification Required
Each covered employer is required to distribute a clearly worded policy to affected employees describing the law (such as a copy of this article) AND the camp’s policies and procedures for complying with the law. Such notification must occur prior to the beginning of the drug/alcohol testing program. This information should include:
the person on staff designated to answer questions about the program
the categories of employees subject
to the testing requirement
the time periods when the rules are in effect (before and after driving responsibilities)
conduct of employees that is prohibited
consequences if the person fails to submit
to a required test
consequences for failing the tests (for alcohol whether at the .02 or .04 levels)
general information on the effect of drugs
and alcohol on performance and life functions as well as available methods of seeking help
Training for supervisors must also occur including at least sixty minutes on alcohol misuse and an additional sixty minutes of training on controlled substance use. Specifically, the training in these two areas should include physical, behavioral, speech, and performance indicators of probable misuse of the above substances. The training should also identify behaviors that would lead to a "reasonable suspicion" test.
Training materials are available in video format from most video rental stores or from local libraries. The specific content of the training outline has not been pre-determined, except to say it must meet the guidelines described in this section.
Help . . .
. . . can be sought from the U.S. Department of Transportation office in a nearby city or in your state capitol. You may call 1-800-225-3784 to get a list of certified laboratories in your area.
Originally published in the 1999 Spring issue of The CampLine.