Federal Program

Federal Highway Administration (FHWA) regulations now require that public and private employers, including the Department of General Services (DGS), test their commercial drivers for drugs and alcohol. These federal regulations also contain specific prohibitions on the use and possession of these substances by commercial drivers. This section provides notice of these requirements, and describes the drug and alcohol testing provisions that now cover employees with commercial driver licenses.

The regulations are consistent with the State of California’s long-standing policies against employee drug and alcohol abuse. Violation of the federal regulations will result in sanctions specified by the regulations, themselves, and may also lead to separate disciplinary action by this department. Any employee concerned about his or her use of alcohol or drugs is encouraged to call the departmental EAP provider, Magellan Healthcare, before an adverse action becomes necessary. Magellan Healthcare staff are available 24 hours and can be reached at 1-866-327-4762. Magellan Healthcare provides confidential professional assessment and referral services.

Questions concerning this notice and the accompanying material should be referred to the DGS Substance Abuse Program Administrator.

who is covered

An employee is covered by the federal regulations if he/she drives a commercial vehicle as part of their work for this department. A commercial vehicle is any vehicle which:

Has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight of more than 10,000 pounds, or
Has a gross weight rating of 26,001 or more pounds, or
Is designed to carry 16 or more passengers including the driver, or
Is of any size and is used to transport hazardous waste.

safety sensitive functions

The federal regulations focus on the driver’s performance of safety-sensitive functions. For example, they prohibit a driver from performing a safety-sensitive function while under the influence of drugs or alcohol. In addition, the timing of certain alcohol testing is key to the driver’s performance of, or readiness to perform, safety-sensitive functions. For such purposes, the regulations define safety sensitive functions as any of the following:

Inspect, service or condition any commercial vehicle.
Drive a commercial vehicle.
Load, unload, or assist in the loading or unloading of a commercial vehicle, attend a commercial vehicle being loaded or unloaded, or give or receive receipts for shipments loaded or unloaded.
Perform the driver requirements related to an accident of a commercial vehicle.
Spend time in or on a commercial vehicle (except time spent in a sleeper berth).
Inspect equipment as required by the Federal Motor Carrier Safety Regulations.
Repair, obtain assistance, or remain in attendance upon a disabled commercial vehicle.

Please note that existing state policy (CCR, Article 29) prohibits employees from being under the influence of drugs or alcohol at any time during duty hours, regardless of the duties being performed.

prohibited conduct

The Federal regulations specifically prohibit the following conduct:

Refusal to submit to an alcohol or controlled substance test.
- No driver shall refuse to submit to any of the required controlled substance and/or alcohol tests, including post-accident, random, reasonable suspicion, or follow-up tests
Prohibited conduct related to controlled substances.
- No driver shall report for duty or remain on duty performing a safety-sensitive function when the driver uses a controlled substance, except when the substance is prescribed by a physician, and the physician informs the driver that the substance does not adversely affect the driver’s ability to perform the safety sensitive function.
- No driver shall report for duty, remain on duty, or perform a safety sensitive function after testing positive for a controlled substance
Prohibited conduct related to alcohol.
- No driver shall report for duty or remain on duty requiring the performance of a safety sensitive function with a breath alcohol concentration level of 0.04 or greater
- No driver shall use alcohol while performing a safety sensitive function
- No driver shall possess alcohol while on duty or operating a commercial vehicle
- No driver shall perform a safety sensitive function within four (4) hours after using alcohol.
- No driver shall use alcohol within eight (8) hours after an accident, or until an alcohol test has been completed, whichever comes first.

testing requirements

The Federal regulations specify various circumstances under which commercial drivers are required to submit to testing for alcohol and the following drugs:

Marijuana
Cocaine
Opiates
Phencyclidine (PCP)
Amphetamines

Testing for these substances is required under the following circumstances.

Pre-employment

A commercial driver is subject to pre-employment testing for drugs prior to first performing safety-sensitive functions for an employer.
Pre-employment testing will be required under FHWA regulations for current employees if they obtain a commercial drivers license and will be performing safety sensitive functions during the course of their employment.

Note: Currently, the department does not use any classifications that require pre-employment drug testing.

Random

FHWA regulations require employers to conduct random alcohol tests on 25 percent of their commercial drivers annually and random drug tests on 50 percent of their commercial drivers annually. Random testing is unannounced.

A commercial driver is subject to this random testing for:

Controlled substances (drugs) anytime the driver is on duty
Alcohol, anytime the driver is ready to perform or immediately available to perform a safety-sensitive function, is actually performing, or has just performed a safety-sensitive function.

Reasonable Suspicion

This testing occurs when the employer has reasonable suspicion that the driver has violated the controlled substance or alcohol rules. This is based on observations of the driver’s appearance, behavior, speech or body odors or indications of the chronic or withdrawal effects of controlled substances.

A commercial driver is subject to reasonable suspicion testing for alcohol anytime preceding, during or after the driver has performed a safety-sensitive function.

A commercial driver is subject to reasonable suspicion testing for controlled substances anytime the driver is on duty.

Post-Accident

As soon as practicable following an accident involving a commercial vehicle, each surviving commercial driver shall be tested for drugs and alcohol when either:

The accident caused a fatality; or
The driver receives a citation under state and local law for a moving violation arising from the accident.

For the purposes of post-accident testing, an accident is defined as an incident involving a commercial vehicle in which there is either a fatality, an injury treated away from the scene, or a vehicle with damage requiring that it be towed from the scene.

Note: If a post-accident test is required, the commercial driver must be tested for alcohol within two hours of the accident and within 32 hours for drugs. The driver may not consume alcohol for eight hours after an accident requiring post-accident testing or until such time as a test for alcohol has been administered, whichever occurs first.

Return-to-Duty

A commercial driver is subject to return-to-duty testing before he/she resumes safety-sensitive duties after having been found in violation of the FHWA drug and alcohol misuse rules.

Follow-Up

A commercial driver is subject to follow-up testing after returning to safety-sensitive duties. The federal regulations require at least six follow-up tests during the first 12 months, and there may be additional testing lasting up to 60 months. Within these limits, the specific follow-up testing requirements are determined by a substance abuse professional. Follow-up testing is announced.

driver obligations

The Federal regulations require covered drivers to submit to drug and alcohol testing under the circumstances specified above. The following shall constitute a refusal to submit, and shall lead to various corrective actions, including the driver’s immediate removal from the performance of safety-sensitive functions.

Failure to provide adequate breath for alcohol testing without a valid medical explanation after having received notice of the requirement for breath testing.
Failure to provide adequate urine for controlled substance testing without a valid medical explanation after having received notice of the requirement for urine testing.
Engaging in conduct that clearly obstructs the testing process.

testing procedures

Breath testing will be used for alcohol, and urine testing will be used for drugs. This will be conducted in accordance with strict federal standards. For further information, please contact the Constructive Intervention Unit, DGS Substance Abuse Program Administrator.

consequences

Any commercial driver who has engaged in prohibited conduct shall be immediately removed from the performance of any safety-sensitive function related to a commercial vehicle, including driving, and may not perform any safety-sensitive functions until:

He/she has been evaluated by a Substance Abuse Professional (SAP)* who will determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and/or controlled substance use.
If the driver has been identified by a SAP as needing assistance in resolving problems associated with alcohol or controlled substances, the driver must be re-evaluated by a SAP to determine whether he/she has complied with any rehabilitation program prescribed by the original evaluating SAP.
The commercial driver has undergone a return-to-duty alcohol test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved use of controlled substances.

If the driver has been identified by a SAP as needing assistance in resolving problems associated with alcohol or controlled substances, the driver will be subject to follow-up testing after returning to duty for a minimum of six tests in the first 12 months.

In addition to the above, the department may take adverse action up to and including dismissal for any driver who engages in conduct prohibited by the Federal Highway Administration’s Controlled Substances and Alcohol Use and Testing Rules (49 CFR 382, et.al.).

*Federal regulations require that the SAP must be either a licensed physician, certified psychologist, social worker, employee assistance professional or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission –NAADAC).