Chapter 5 - TYPES OF TESTING The FMCSA regulations require you to implement the following types of controlled substances and alcohol tests:

•     Pre-employment (controlled substances only)

•     Reasonable suspicion

•     Post-accident

•     Random

•     Return-to-duty

•     Follow-up.

This chapter describes the major requirements of each of these types of tests.

Section 1.  PRE-EMPLOYMENT TESTING All applicants for employment on a permanent or temporary basis as a CMV driver, or current employees who wish to remain CDL drivers, must be given pre-employment tests for controlled substances.  Prior to conducting the test, you must inform the applicant or driver in writing of the testing requirements (§382.601).

The purpose of pre-employment testing is to deter and detect controlled substances abuse by driver-applicants.  Pre-employment testing identifies drivers who could bring a controlled substances problem into your organization.

A driver-applicant shall not be allowed to perform as a driver unless the employer has a verified negative controlled substances test result from the MRO for the driver-applicant.

You are required to conduct pre-employment tests each time a driver returns to work after a layoff period when the driver has not been subjected to random controlled substances testing for more than 30 days or has been employed by another entity.  You must notify a driver-applicant of the results of a pre-employment controlled substances test if the driver-applicant requests the results within 60 days of being notified of the disposition of the

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Exceptions for Pre-employment Controlled Substances Testing

You may elect not to administer a pre-employment controlled substances test if

•      The driver-applicant has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 and part 40 (or another DOT agency's controlled substances testing program) within the previous 30 days, and

•      While participating in that program, the driver-applicant either was tested for controlled substances within the past 6 months or participated in a random testing program for the previous 12 months, and

•      The employer verifies that no prior employer of the driver-applicant has records of a violation of Part 382, subpart B or the controlled substance prohibited conduct rules of another DOT agency within the previous 6 months (§382.301(c)).

You must obtain enough information to show that the driver is qualified under the regulations.  If you operate under either of the two exceptions mentioned above, you must contact the previous testing program to verify the following:

•      Name(s) and address(es) of the program(s),

•      That the driver participates or participated in the program(s),

•      That the program is in compliance with 49 CFR part 40,

•      That the driver has not refused to be tested for controlled substances,

•      The date the driver was last tested for controlled substances, and

•      The results of any tests taken within the previous 6 months.

You must obtain a release form signed by the driver-applicant authorizing the previous testing program to share this information with you and forward that release form to each of the driver's previous employers.

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Table 5.1  Pre-employment Testing Examples

The following are some examples that describe situations in which an employer MUST conduct pre-employment tests, unless the employer utilizes an exception.

•      A new employer just started operating CMVs.  All drivers hired to drive CMVs subject to this rule will fall under the pre-employment testing requirements.

•      A driver usually operates CMVs that do not require a CDL, but then is required to operate a CMV that requires a CDL for the same employer.  A pre-employment test is required.

•      Any driver who is hired and has not been part of a controlled substances program that complies with the FMCSA regulations for the previous 30 days must undergo a controlled substances test.

The following are some examples that describe situations in which an employer may not have to conduct pre-employment tests.

•      Employer A purchases employer B.  Employer B drivers who are now Employer A drivers do not need to be tested because their employment status has not been interrupted.

•      Pre-employment tests are not required when an employer's name changes.

•      If a driver is transferred from one division to another within the same company, the pre-employment requirements do not apply.  However, when a driver transfers from one wholly owned subsidiary or independently operated company to another, a pre-employment test is needed, unless the driver is subject to one of the exceptions.

If you use, but do not employ, a driver more than once a year, you must assure yourself once every 6 months that the driver participates in a controlled substances testing program that meets the requirements of the regulations.  This means that if a driver is regularly employed by another employer

For example, a motor coach tour employer regularly employs a driver to operate

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For controlled substances testing under your program, the driver states that he/she has had a negative controlled substances test in the last month.  The driver provides you with a written authorization requesting that his/her regular employer release the information about his/her test results for the last 6 months to your employer.  You obtain all of the records required by the exception and verify that the driver did have a controlled substances test in the last month.  It was verified negative and the driver has no subsequent violations of the prohibited conduct in subpart B.

You use the driver for the trip and the driver returns to the motor coach employer after completing your trip.  You use the driver again in 1 month and again after 4 months.  You are not required by the regulations to check the driver's testing records at the motor coach employer when you use the driver at the one month and four month intervals.  The driver, however, returns 7 months after you first used him/her and since the last time you checked the driver's testing records.  Now you must again check with the motor coach employer to verify that the driver continues to

Two-Year Prior Employer Checks (49 CFR 382.413/40.25) You must also request the following information from previous employers concerning the driver-applicant's participation in a controlled substances and alcohol program within the preceding 2 years:

1. Did the employee have alcohol tests with a result of 0.04 or higher?

2. Did the employee have verified positive drug tests?

3. Did the employee refuse to be tested?

4. Did the employee have other violations of DOT agency drug and alcohol testing regulations?

5. If you answered "yes" to any of the above items, did the employee complete the return-to-duty process?

6. Did a previous employer report a drug and alcohol rule violation to you?

You must as an employer ask prospective driver-applicants if they have failed or refused a DOT drug or alcohol

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You must obtain the driver-applicant's written consent (see sample forms) to obtain the information from the driver-applicant's previous employers as a condition of employment.  The FMCSA expects you to obtain the information as soon as possible and prior to using the driver to perform any safety-sensitive functions other than initial road testing of the driver.  However, if this is not

If you make a good-faith effort to obtain the information as soon as possible and you are unable to obtain this information within the 30-day period, you may continue to use the driver after the 30-day period, if you properly document your good-faith effort to request and obtain the information.  However, if you failed to request the information from any prior employer of the driver, you must stop using the driver.  See table 5.2 for an example of a good-faith effort to obtain a driver's prior employers' testing records.

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Table 5.2.  An Example of a Good-Faith Effort

for Obtaining Prior Testing Information

A good-faith effort might begin with obtaining the driver's written consent on your release of information form.  The driver should complete the document at the time the driver prepares other documents in the hiring process (e.g., §391.21, Application for Employment.)  Immediately after you make your conditional offer of employment, send the written consent, along with how you would like the information transmitted to you (e.g., by secure and confidential fax, by certified mail, by telephone to a designated person) to the previous employer by certified mail.

After a reasonable period, you should contact the driver's previous employers' alcohol and drug testing program manager(s) to ask about the status of your request to obtain the driver's testing records

the previous employer(s).  You should not wait until a few days before the first time you will use the driver to perform safety-sensitive functions to make a follow-up contact with the previous employers. 

Previous employers are required to forward their testing information immediately upon receipt of the specific written consent to you or the third-party administrator designated to receive the information.

If a driver's previous employer has gone out of business, refuses to comply with 49 CFR section 40.25 requirements to forward their testing information about the driver to you, or if for some other reason you cannot obtain the testing information from a particular employer, document the facts and any related information and retain them in your files.

Once you have determined that you will hire the driver-applicant and the driver-applicant has provided the written consent, you must provide to each employer the written request authorizing release of the informaation to you.  You may wish to fax the consent form

It is important to document the request for, and inability to receive, information from the driver's prior employers.  In the event of an FMCSA investigation of your program, you may be asked to produce this documentation for the FMCSA investigator. (See sample forms.)

If you have not heard from the driver's previous employer(s) after a day or so, you

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If you receive information indicating that the driver has tested positive for controlled substances, tested at or above 0.04 alcohol concentration, or refused to be tested, you must not use that driver to perform safety-sensitive functions unless the driver has followed the requirements of 49 CFR part 40, subpart O and has been advised by a substance abuse professional that the driver may return to work.  These requirements include being evaluated by a substance abuse professional, complying with any recommended treatment, passing a return-to-duty test, and having at least six follow-up tests within the first 12 months of returning to work as a driver.

If you obtain records from the driver's previous employers verifying that the driver has violated 49 CFR Part 382, subpart B within 30 days of your use of the driver, you must immediately stop using the driver and determine what, if anything, the driver has complied with in part 40, subpart O.  If the driver has not had a follow-up evaluation by an SAP, after any alcohol test above 0.04, any verified positive controlled substances test, or the driver is refusing to test, you may not use

If the driver has not had a return-to-duty test after obtaining a letter of compliance from an SAP, a return-to-duty test is necessary.  A pre-employment negative controlled substances test and an alcohol test result of less than 0.02 alcohol concentration conducted by you will satisfy the requirement for a return-to-duty test in this instance.  However, you will be responsible for ensuring that at least six follow-up tests are conducted within the first 12 months that the driver is employed or used at your organization.

If the driver has provided a previous employer with proper documentation for return to work and the driver has taken a return-to-duty test or a pre-employment test at the previous employer, but the previous employer did not complete all of the required follow-up tests within the first 12 months, you will be responsible for ensuring the remaining tests are conducted.

Section 2.  REASONABLE SUSPICION TESTING The FMCSA regulations require you to test a driver if a trained supervisor has reasonable suspicion that the driver has used a controlled substance or has misused alcohol as defined in the regulations (§382.307).  The request to undergo a reasonable suspicion test

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Reasonable suspicion testing is designed to provide you with a tool to identify affected drivers who, through alcohol or controlled substances misuse, may pose a danger to themselves and others in their performance of safety-sensitive functions.  Drivers may be at work in a condition that raises concern regarding their safety or productivity.  A supervisor must then make a decision as to whether reasonable suspicion exists that a controlled substance and/or alcohol may be causing the behavior.

Supervisory Observations

Only one qualified supervisor or company official is required to witness the conduct of the driver; however, it is a good business practice to have at least two qualified supervisors or company officials witness the conduct.  Supervisors or company officials who make the determination of whether to test must be trained in the physical, behavioral,

To protect yourself and your drivers, supervisors who make the determination that reasonable suspicion exists to conduct an alcohol test may not conduct the alcohol test on that driver, unless they have been trained.

Reasonable suspicion alcohol testing is permissible only if the supervisor's observations are made during, just preceding, or just after the driver is performing safety-sensitive functions or is attempting to perform safety-sensitive functions.  In contrast, you may test a driver for controlled substances under reasonable suspicion based on observations at any time the driver is on duty.

Besides recognizing valid objective signs and symptoms of controlled substances use and alcohol misuse, supervisors must also know the proper procedures for confronting and referring the driver for testing.  If supervisors are not trained, or are not fair and objective in requesting reasonable suspicion tests, driver complaints of harassment will result.  Be careful not to expect that training alone will make your supervisors experts in detecting substance abuse. 

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If a supervisor, trained to identify the signs and symptoms of controlled substances use and alcohol misuse, reasonably concludes that objective facts indicate controlled substances use or alcohol misuse, this is sufficient justification for testing.  A final practical check is whether the supervisor would

have been less responsible in not taking action than in asking the driver to submit to testing.  Remember, safety is the first priority!

For controlled substances, the driver must report for collection within a reasonable time. However, you are encouraged to collect the specimen as soon as possible following the observations triggering the request to test, because the test's ability to detect controlled substances declines with the passage of time.

Supervisors making reasonable suspicion determinations shall document those observations within 24 hours of the observed behavior or before the results of the controlled substances test are released, whichever is earlier.

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Drivers shall not perform safety-sensitive functions if under the influence of or impaired by alcohol, as determined by their trained supervisor.  Following a reasonable suspicion determination, resulting in a positive test, supervisors shall not permit the driver to perform or continue to perform safety-sensitive functions until 24 hours have elapsed. If an evidential breath test device is unavailable, the motor carrier is required to remove the driver from performing safety-sensitive functions until 24 hours have elapsed.  You are prohibited from taking any additional action under FMCSA authority against a driver based solely on the driver's behavior and appearance.  You may have, however, additional policies under your own authority. Flow charts detailing the reasonable suspicion testing process for alcohol and controlled substances appear in the appendix at the end of this chapter.

The FMCSA regulations require testing in specific CMV accidents (§382.303).  An accident is defined as an occurrence involving a CMV operating on a public road that results in (1) a fatality; or (2) bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (3) one or more motor vehicles incurring disabling damage as a result of the accident, requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle.

There is a significant difference between reasonable suspicion testing and post-accident testing.  Reasonable suspicion requires some indication of a link between witnessed behavior and substance abuse before a test can be requested.  Post-accident testing is mandatory when certain criteria are met.

Drivers subject to post-accident testing are those who

•     While performing safety-sensitive functions are involved in an accident resulting in the loss of human life, or

•     While performing safety-sensitive functions are involved in a nonfatal accident resulting in the driver receiving a citation under State or local law for a moving traffic violation arising from the accident.

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If an alcohol test is not administered within 2 hours following the accident, the employer shall prepare and maintain a record stating the reasons the test was not promptly administered.  If an alcohol test is not administered within 8 hours or a controlled substances test is not administered within 32 hours following the accident, the employer shall cease attempts to administer the test and shall prepare and maintain the same record.  For employers requested by FMCSA to submit their annual calendar year summary, see Chapter 9, Section 5, Annual Calendar Year Summary-reporting Requirements for instructions on reporting required post-accident tests that were not to be administered.

In the rare event that Federal, State, or local law enforcement officials administer alcohol or controlled substances tests on a driver involved in an accident, and the results are available to you, those results may meet the requirements of the FMCSA regulations, provided such tests conform to applicable Federal, State, or local requirements and certain conditions are met.

Alcohol tests conducted by law enforcement officials using breath or blood specimens will satisfy the postaccident alcohol test requirement when you obtain the test result.  Controlled substances tests conducted by law enforcement officials must use urine as the body fluid tested.  For examples illustrating this concept, please refer to table 5.3, Postaccident Law Enforcement Tests.

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Table 5.3 Post-Accident Law Enforcement Tests

The following examples describe situations where an employer may use test results from law enforcement agencies in lieu of its own test results.

1.      Treat injuries first.  Accident victims' health and safety are always a higher priority than conducting an alcohol or controlled substances test.

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3.      Explain the need for testing.  Tell your driver that a test is to be conducted.  Point out to the driver that a negative finding will objectively put to rest any suspicion of controlled substances or alcohol as a cause of the accident.

4.     Conduct tests promptly.  The FMCSA regulations require that specimen collection be performed as soon as possible following the accident, but within 32 hours for controlled substances and within 8 hours for alcohol.

Flow charts detailing the post-accident testing processes may be found in the appendix at the end of this chapter.

Section 4.  RANDOM TESTING

The FMCSA regulations require random testing for all drivers subject to the CDL requirements (§382.305).  Random testing identifies drivers who use controlled substances or misuse alcohol but are unable to predict the test as they would in the case of

post-accident or pre-employment testing.  More importantly, it is widely believed that random testing serves as a strong deterrent against drivers beginning or continuing prohibited controlled substances use and misuse of alcohol. Selection Techniques

You must use a scientifically valid random selection method to select drivers for testing.  Drivers can be chosen from selection pools in several ways.  These include semiautomatic methods (using personal computers) or manual methods (using random number tables).  The computer-based methods are generally more efficient, but the manual methods can be equally fair and credible.

Commercially available computer-based random number-generating software programs enable you to match drivers to numbers and to select names from those lists for random controlled substances and alcohol tests.  Some of these programs are comprehensive, including scheduling and recordkeeping functions.  Alternatively, spreadsheet programs, commonly used for financial and operational analyses, often include a routine that provides random numbers.  Those random numbers can be assigned to your driver list and used for selecting drivers to be tested.  Because your driver pool may fluctuate, the list of driver names must be updated each time the pool

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If a computer program is not available for random selection, a manual sampling technique that uses a random number table may be used.  These tables are found in many statistics textbooks available in libraries and bookstores.  The scientific community does not consider drawing names out of a hat or container to be a scientifically valid method for sampling. While this technique is simple and appears fair because it can be done in full view of the affected drivers, it is actually less random than using a computer or a random number table because of inconsistencies in paper size, as well as the lack of control over the names included or excluded.  Also, it is very difficult to document how a selection is made and who is selected for testing.

The test dates must be spread reasonably throughout the year and should not establish a predictable pattern (e.g., the first Monday of each month).  The number of tests conducted weekly, monthly, or quarterly should remain relatively constant to the extent possible; however, drivers selected for that testing cycle must be tested.  Conducting all of your tests in one month, for example, does not achieve the goal of random testing.  Likewise, the testing should be performed on different days of the week and at different times throughout the annual cycle.  This helps to

Random Testing Rates

The current random testing rates under FMCSA regulations are 50 percent for controlled substances and 10 percent for alcohol.  This means that the number of tests to be administered each year is equal to at least 50 percent and 10 percent, respectively, of the average number of driver positions subject to these regulations.  Remember, a driver is anyone who operates a CMV for you.  The driver positions will include other employees in your organization who occasionally drive or drive in rare circumstances.

A slightly higher percentage may have to be selected for testing to compensate for cancelled tests or drivers unavailable for

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Because the random rates for controlled substances and alcohol are different and may vary on a yearly basis, you may wish to conduct separate selections for your alcohol and controlled substances random tests; however, you are not required to do so.  You may select for alcohol testing the first 20 percent of those drivers selected for controlled substances testing.  Other combinations for selecting drivers for alcohol and controlled substances testing may be used, provided you can prove that the method is scientifically valid and impartial toward the drivers (e.g., two-stage selections).

The FMCSA's random testing rates may be adjusted based on analysis of positive random test results within the entire CMV industry.  If this occurs, the change will be published in the Federal Register.  If the minimum annual percentage rate changes, the change will take effect starting January 1 of the year following publication in the Federal Register.

Only drivers performing safety-sensitive functions are permitted in the random pools.  If you decide to randomly test drivers who do not drive CMVs, those drivers must be placed in a separate pool and tested under

How to Compute the Average Number of Driver Positions for Random Testing

There will be fluctuations in your driver work force, which will make an accurate computation of a testing rate important.  Your random testing program plan should take into account these fluctuations by estimating the number of random tests needed to be performed over the course of a calendar year.  If your driver work force is expected to be relatively constant (i.e., the total number of driver positions is approximately the same or changes at a relatively constant rate), then the number of tests to be performed in any given year could be determined by multiplying the average number of driver positions by the testing rate.

If there is a large fluctuation of driver positions throughout the year, you must base driver positions on the number of drivers eligible to be tested at the time of each selection period.  The total random tests taken for the year, however, must equal or exceed the average number of driver positions.

For example, if you decided to perform random selections four times a year, the number of controlled substances tests, to be performed

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T = 50% x D/P T = Total random tests (must equal or exceed) D = Driver positions eligible to be tested P = Number of test periods per year Note: 10 percent for alcohol

At the time of selecting the individuals to be tested, you determined that there were an average of 60 drivers eligible for testing during the period covered by the February selection, 80 drivers in May, 100 drivers in August, and 70 drivers in November.  Using the formula given above, you would have to perform 8 controlled substances tests in February (50% times 60 divided by 4 equals 7.5, rounded up to the nearest whole number), 10 tests in May, 13 tests in August, and 9 tests in November, for a total of 40 controlled substance tests.

However, throughout the year you needed to perform only 39 controlled substances tests in order to assure testing at the 50 percent rate.  This figure was computed using the same formula with D equal to the summation of the number of drivers eligible for testing in each of the selection periods (D = 60 + 80 + 100 + 70 = 310 drivers), and by

Since driver populations may vary during any given period in a year, conducting random testing only during low-driver periods would not enable you to meet the 50 percent random testing ratio.

Your random testing policy or plan must be documented.  The FMCSA emphasizes that each selection for random testing must include all your drivers to whom the rule applies, regardless of whether or not your drivers have been tested in the past.  This would include individuals who do not regularly drive (such as clerks, mechanics, supervisors, officials), but whom you expect to be immediately available to perform the safety-sensitive function of driving a CMV.  It is quite likely with a large driver turnover that, over the course of the year, you will be employing/using more drivers than there are driver positions.  In determining the number of tests, you should use the number of driver positions, not the number of CMV drivers used/employed during the testing period.

To illustrate using the previous example, in the February selection (which represents the quarter January 1 through March 31), the employer determined that there were

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However, during the same quarter (at least up to the date the employer performed the random selection of drivers to be tested, say February 12) the employer used/employed a total of 75 individuals as drivers or persons expected to be drivers.  Of these 75 individuals, 15 were no longer used by the employer at the time the selection was made (February 12).  As noted earlier, eight individuals will be selected for controlled substances testing and two individuals will be selected for alcohol testing.

Random Testing Pools

To ensure that each of your drivers has an equal chance of being selected and tested, random testing pools must be established and maintained.  A random testing pool may include any persons who are subject to random testing under any DOT rule, as decided by the employer.  Likewise, a person who is subject to more than one rule may be included in more than one pool.  For example, a person who works for a railroad company subject to both FRA and FMCSA rules may be included in two separate pools or in one pool, at the discretion of the railroad company.

A single pool may be established for alcohol and controlled substances, provided all drivers have an equal chance of being selected

Sampling With Replacement

To ensure that the process is in fact random, all drivers, whether or not they have been chosen for testing in the past, will remain in the pool for each subsequent selection period.  This procedure ensures that the probability of any driver being selected each period is always the same, whether or not the driver was selected in a previous period.  This requirement is expected to serve as a deterrent for those drivers who, believing that they are in the clear, might otherwise consider using controlled substances or misusing alcohol following a recent negative test.

Driver Notification

After a list of drivers for random testing has been generated, you should test those drivers as soon as possible.

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You are responsible for ensuring that a selected driver, once notified, proceeds immediately to a collection site.  Immediately, in this context, means that all the driver's actions, after notification, lead to an immediate specimen collection.  This ensures that a driver selected for testing will not have an opportunity to do anything that may affect the outcome of the test.  Any activity that does not directly lead to submitting a specimen should not be performed until after the specimen has been collected.  You should clearly indicate, in your random testing procedures, what these activities are so that there will be no misunderstandings among your drivers.

If you choose to notify your drivers while they are "on the road," you should establish procedures that will allow them to report to a nearby collection facility before continuing their current trip.  This may require a driver to detour from a planned route. 

Testing Time Frames

A driver shall be subject to random testing for alcohol only while the driver is performing safety-sensitive functions, just before the driver is to perform, or just after the driver has ceased performing such functions.  Performing a safety-sensitive function includes being immediately available to perform such functions.

Obviously, the best time to test for alcohol is before the driver begins to perform the safety-sensitive function.  However, if the driver understands that a random test will only be administered before he/she begins work and there is an opportunity to drink during work, deterrence is limited.

Controlled substances testing may be performed at any time the driver is at work.  The driver may be performing clerical or mechanical repair duties at the time of notification by the employer.  The driver should not be required to report for a test in the middle of vacation time, while sick, or on other types of excused leave.

Availability of Drivers

When drivers are off work due to long-

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•     The driver's name could be skipped if the driver selected is going to be gone throughout the entire testing period. You then may select an alternate by using a scientifically valid method, selecting one of the other available drivers in the pool, then testing that driver.

•     The name could be set aside until the driver comes back from the extended leave, and you would conduct the test at that time, as long as the driver returns before the next selection.

You may not require a driver to submit to a test while on an extended leave.  If you experience seasonal fluctuations in the number of drivers available for testing, you should adjust each random selection episode to reflect the fluctuation, thereby ensuring an equal chance of all drivers being selected.

If a driver leaves your employment or is reassigned to nondriving duties, and at some later point is rehired or reassigned to driving duties, the pre-employment testing provisions of this regulation apply.  If a driver primarily does other nondriving work for you and is on call to drive at any time you need the driver,

Flow charts detailing the random selection process may be found at the end of this chapter.

Section 5.  RETURN-TO-DUTY TESTING

Before you allow a driver to return to duty to perform a safety-sensitive function following certain prohibited conduct_a verified positive controlled substances test result, an alcohol result of 0.04 or greater, a refusal to submit to a test, or any other activity that violates provisions of subpart B_that driver must first be evaluated by a SAP, participate in any treatment program prescribed, and pass a controlled substances and/or alcohol return-to-duty test (Section 40.305).  In pre-employment testing situations, a verified positive controlled substances test or an alcohol result of 0.04 or greater does require a visit to the SAP if you hire the person to perform safety sensitive functions.

The purpose of the return-to-duty test and the evaluation of an individual's return-to-duty status by the SAP is to ensure that the driver receives proper care, if needed.  It is also to provide some degree of assurance to the

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employer that the individual is free of alcohol and/or controlled substances and is able to return to work without undue concern about continued substance abuse.

The driver must have a verified negative controlled substances test result or an alcohol test result of less than 0.02 to return to a safety-sensitive function.  As in any DOT test, if a controlled substances test is cancelled, you shall require your driver to submit to and pass another controlled substances test.

Flow charts detailing the return-to-duty process can be found at the end of this chapter.

Section 6.  FOLLOW-UP TESTING

Once allowed to return to duty, a driver for whom treatment was recommended must be subject to unannounced follow-up testing for at least 12, but not more than 60, months.  The frequency and duration of the follow-up testing will be recommended by the SAP as long as a minimum of six tests are performed during the first 12 months after the driver has returned to duty (§40.307).

It is important to remember that follow-up testing is separate from and in addition to the regular random testing program.  Drivers subject to follow-up testing must remain in the standard random pool and must be tested

whenever their names come up for random testing, even if this means being tested twice in the same day, week, or month.

If the driver is subject to controlled substances follow-up tests, the SAP may also require the driver to take one or more follow-up alcohol tests.  If the driver is subject to alcohol follow-up tests, the SAP may require the driver to take one or more follow-up controlled substances tests.

Flow charts detailing the follow-up testing process may be found at the end of this chapter.

Section 7.  PROFICIENCY TESTING

In addition to the six major driver testing categories described above, you are required to perform proficiency testing as a quality assurance measure for the testing laboratory that conducts your controlled substances testing.

As an employer or C/TPA with an aggregate of 2,000 or more DOT-covered drivers, you must send blind specimens to laboratories you use. If you have an aggregate of fewer than 2,000 DOT-covered drivers, you are not required to provide blind specimens. To each laboratory to which you send at least 100 specimens in a year, you must transmit a

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number of blind specimens equivalent to 1 percent of the specimens you send to that laboratory up to a maximum of 50 per quarter.  These specimens are called blind performance tests because the testing laboratory does not know they are quality control specimens rather than actual driver specimens.

The blind quality control specimens must not be distinguishable from driver specimens.  Approximately 75 percent of the specimens you submit must be blank (negative) and approximately 15 percent must be positive for one or more of the five controlled substances, and approximately 10 percent must be adulterated with a substance cited in HHS guidance or substituted. If a laboratory reports a positive on a quality control specimen that was a blank (negative), you must notify the DOT immediately by phone or e-mail:

Office of Drug and Alcohol Program Compliance U.S. Department of Transportation (202) 366-3784 or e-mail: www.dot.gov./ost/dapc

If a laboratory reports a negative on a quality control specimen that was a spike (positive), you should notify the laboratory and attempt to discover the cause of the error.  Repeated false negative errors should be reported to the DOT at the above address.  If the laboratory reports conflicting results on the

two parts of a non-safety-sensitive split sample, you must report this to the DOT.

If your laboratory repeatedly reports inaccurate or conflicting results, you should consider changing laboratories.

DOT and FMCSA regulations do not specify where to obtain blind performance specimens.  However, you are encouraged to obtain blind specimens from specimen vendors.  A list of vendors is available from the Department of Health and Human Services (DHHS).

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Chapter 5 Appendix

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Terms and Definitions Used in Chapter 5

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Accident An accident is defined as an occurrence involving a CMV operating on a public road which results in, (1) a fatality; or (2) a bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (3) one or more motor vehicles incurring disabling damage as a result of the accident, requiring the vehicle to be transported away from the scene by a tow truck or other vehicle.

Unless an occurrence involving a CMV meets this definition of an accident, the accident is not considered to be an accident for purposes of Federal post-accident alcohol and controlled substances testing by employers of CMV drivers.

Alcohol Concentration The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath, as indicated by an evidential breath test.  In law enforcement, this is referred to as blood alcohol concentration (BAC).

Blind Sample, Blind Performance, or Proficiency Test Specimen A test submitted to a laboratory for quality control testing purposes, with a fictitious identifier, so that the laboratory cannot distinguish it from driver specimens, and which is spiked with known quantities of specific controlled substances or is blank, containing no controlled substances.

Disabling Damage Damage that precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.

(1)     Inclusions.  Damage to motor vehicles that could have been driven, but would have been further damaged if so driven.

(2)     Exclusions.   (i)  Damage which can be remedied temporarily at the scene of the accident without special tools or parts.  (ii)  Tire disablement without other damage, even if no spare tire is available. (iii)  Headlamp or taillamp damage.  (iv)  Damage to turn signals, horn, or windshield wipers that makes them inoperative.

Follow-Up Test Unannounced alcohol and/or controlled substances testing given to drivers who previously tested positive for a controlled substances or alcohol and are returning to duty.

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• While performing safety-sensitive functions are involved in an accident resulting in the loss of human life, or

• While performing safety-sensitive functions are involved in a nonfatal accident resulting in the CMV receiving a citation under State or local law for a moving traffic violation arising from the accident, and

(1) There is bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident;   or

(2) One or more motor vehicles incurs disabling damage as a result of the accident, requiring the vehicle to be transported away from the scene by a tow truck or other vehicle.

Pre-employment Test A test given to an applicant or driver who is being considered for a safety-sensitive position.

Random Test A test administered to a predetermined percentage of drivers who perform safety-sensitive functions and who are selected on a scientifically defensible random and unannounced basis.

Reasonable Suspicion Test A test given to a driver who performs a safety-sensitive function and who is reasonably suspected by a trained supervisor of using a controlled substance or misusing alcohol.

Return-to-Duty Test A controlled substances and/or alcohol test prior to return to duty.

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Flow Charts

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Random Testing Pools

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There are many ways to establish a random testing pool.  The rules allow for a variety of pool types to account for the variety of employer arrangements among employers regulated by the FMCSA.  The physical form of the pool is not specified.  However, there must be some method of identifying all the individuals in the pool for each selection (e.g., a hard copy or electronic list of each person's name, social security number, driver identification number, or other unique identifier).  The following examples illustrate several possible pool arrangements.  They are not the only acceptable arrangements.

Example 1: Company-Based Pool for Random Drug and Alcohol Testing

This pool consists of all drivers subject to random testing.  Drivers are selected using one of the following methods:

1. Names are drawn for controlled substances testing and the first 20% of the selected group of names are selected for alcohol testing.  It is imperative that after the first draw for the controlled substances testing, the names are not alphabetized before selection for the alcohol testing.

2. Names are drawn for controlled substances tests and then the names are returned to the pool for a second selection of names for alcohol testing.

Example 2: Company-Based Program With Separate Pools for Random Controlled Substances and Alcohol Testing

These pools are maintained separately for random controlled substances and random alcohol testing.  This situation would be necessary when some persons are not subject to random alcohol testing but are subject to random controlled substances testing (as is the case with a person who is subject to both FMCSA and RSPA rules, or FMCSA and USCG rules).

Example 3: Company-Based Pool for "Full-Time" Drivers and a Variety of Pools for "Part- Time" Drivers

This arrangement would be applicable for employer operations that use "trip-lease" drivers.

Example 4: Consortia-Based Pool

These pools are maintained by a consortium.  Part of the services provided by a consortium may involve maintaining the random testing pool(s) by using payroll information from each member system to update the pool membership.  Because drivers of all employers are pooled together, the pool is large enough that the likelihood of any one driver being repeatedly selected is lessened.  Likewise, since no employer representative is involved in the selection process (all selection is done by the consortium), no driver need fear that he or she has been unfairly singled out for testing.

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Manual Random Sampling Technique

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The following manual procedure can be used for randomly selecting drivers for testing.  However, it is recommended that a software program be used for random number generation.

Make a copy of table 5.4 and Worksheets 1 and 2, which follow these instructions.

Worksheet 1

1.      Enter the current date on Line A.

2.      On Line B, enter the total number of drivers who are subject to random selection for testing.

3.      Below Line B, list the badge numbers, identification (ID) numbers, or Social Security numbers of all drivers who must be randomly tested in numerical order from the smallest to the largest.  Assign numbers in sequence to these badge, ID, or Social Security numbers.  (For example, assign the number "1" to the driver with the smallest ID number, the number "2" to the driver with the next highest number, etc.)  Use continuation pages of Worksheet 1 if necessary.  Alternatively, you can write the numbers in sequence next to the driver badge, ID, or Social Security number on a computer printout.

Worksheet 2

1.      Complete Lines A through D.  (The total number of drivers on Line C should be the same as the number on Line B of Worksheet 1.)

2.      Select any number on any one of the four pages of table 5.4.  This can be done by placing your finger, with your eyes closed, on one of the four pages.  Write the number selected in this way on Line E.

3.      Write the first two digits of the number you selected on Line F.  This is your "row number" key.

4.      Write the next two digits on Line G.  This is your "column number" key.

5.      Pick the range of column headings on table 5.4 that contains the number on Line G and enter it on Line H.

6.      Find the page of table 5.4 on which your row and column numbers (from Lines F and G) appear and enter the page number (1, 2, 3, or 4) on Line I.

7.      On the page recorded on Line I, find the five-digit number across from the row number (recorded on Line F) and the column number (recorded on Line H) and enter it on Line J.  This is your "starting location."  Place an asterisk beside it.

8.      On Line K, enter the fifth digit of the number on Line E.  This number gives you the direction in which to move from your starting location (marked with an asterisk) on table 5.4.  If the number is 1, 2, or 3, you move up; if the number is 4 or 5, you move to the right; if the number is 6, 7, or 8, you move down; and if the number is 9 or 0, you move to the left.  Circle the direction on Worksheet 2.

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10. Move from your starting location (marked with an asterisk) in the direction indicated by the number on Line K.  In each five-digit entry that you come to, scan the number of digits that correspond to the number entered on Line L until you come to a number that is less than your total number of affected drivers.  Record those digits at the bottom of Worksheet 2 until you have selected as many numbers as drivers to be tested (that is, as many numbers as are listed on Line D).

Do not select the same number twice.  Continue until you have chosen enough different random numbers for all your drivers.  You may have to skip many numbers because they are larger than the number of your drivers.

      If the scanning direction is to the right, continue on the next row down.  If the scanning direction is to the left, continue on the next row up.  If the scanning direction is down, continue on the next column to the right.  If the scanning direction is up, continue on the next column to the left.  If you run out of numbers on the page, continue to the following page if you are scanning to the right or down.  Continue on the preceding page if you are scanning to the left or up.

11.      The list of numbers you select in this random manner corresponds to the numbers you earlier assigned in sequence to your drivers.  The drivers whose sequence numbers were selected by this method are the drivers to be tested on the proposed date.

      Add the ID number of new drivers to Worksheet 1.  If a driver leaves the random number pool, remove the ID number.

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Table 5.4

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Table 5.4 (Continued)

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Table 5.4 (Continued)