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Federal Highway Administration

Application

The FHWA regulations (49 CFR Parts 382, 391, 392, 395) apply to every person who operates a commercial motor vehicle (CMV) in interstate or intrastate commerce and who is subject to commercial drivers license (CDL) requirements. A CMV is a vehicle that:

  • Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
  • Has a gross vehicle weight rating of 26,001 or more pounds; or 
    Is designed to transport 16 or more passengers, including the driver; or
  • Is used to transport hazardous materials.

An employee is performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any of the on-duty functions listed below.

  • All time at a facility waiting to be dispatched, unless the driver has been relieved from duty;
  • All time inspecting equipment as required by federal regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
  • All time driving;
  • All time, other than driving time, in or upon any commercial motor vehicle, except time spent resting in a sleeper berth;
  • All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving receipts for shipments loaded or unloaded;
  • All time spent performing the driver requirements related to an accident; or
  • All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.

Prohibitions

With regard to alcohol, no driver may:

  • Report to duty or remain on duty while having an alcohol concentration of 0.04 or higher;
  • Possess alcohol while on duty;
  • Use alcohol while performing safety-sensitive functions;
  • Perform safety-sensitive functions within 4 hours after using alcohol;
  • Use alcohol for 8 hours after an accident, or until he/she undergoes an alcohol test; or
  • Refuse to submit to a required alcohol test.

With regard to controlled substances:

  • A driver is not allowed to report to duty when he/she uses any controlled substance, except when the use is prescribed by a physician who has advised the driver the substance does not adversely affect the ability to operate a vehicle.

Required tests

Drivers must submit to a pre-employment test for controlled substances prior to the first time an employee performs a safety-sensitive function. (There is no longer a requirement for a pre-employment alcohol test.)

Drivers will be tested for alcohol and/or controlled substances use under the following circumstances:

  • Post-accident: 
    Will be conducted for each surviving driver who was performing a safety-sensitive function if the accident involved a loss of human life or a driver receives a moving traffic violation. A collision or occurrence meets the definition of an "accident" when the incident involves a motor vehicle operating on a public road which results in: a death; bodily injury to a person who immediately receives medical treatment away from the accident; or one or more vehicles is disabled and must be towed from the scene.

    For alcohol, the test should be administered as soon as it is practical to do so. The test must be conducted within 8 hours following the accident. The employer may not attempt to administer a test after the 8 hour period. 

    For controlled substances, the test must be administered within 32 hours. 
  • Random: 
    For alcohol, the employer must test 25% of the average number of driving positions each year. A driver may only be randomly tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing safety-sensitive functions. 

    For controlled substances, the employer must test 50% of the average number of driving positions each year. Controlled substances testing may be performed anytime while the driver is at work. 
  • Reasonable suspicion: 
    A supervisor's belief must be based on "specific, contemporaneous, articulable observation concerning the appearance, behavior, speech, or body odors of the driver." Employer representatives designated to determine whether reasonable suspicion exists must receive at least 1 hour of training on alcohol misuse and indicators of probable alcohol misuse. Employer representatives designated to determine whether reasonable suspicion exists must receive at least I hour of training on controlled substances use.

    An alcohol reasonable suspicion test is to be administered promptly, and no later than 8 hours after a reasonable suspicion determination is made. The person who determines there is reasonable suspicion should not conduct the alcohol test. 

    For controlled substances, a written record must be made of the observations leading to a reasonable suspicion drug test, and signed by the company official who made the observations, within 24 hours of the observed behavior. 
  • Return-to-duty: 
    A driver who has violated a prohibition on alcohol use must undergo a return-to-duty test with a result of under 0.02 before returning to duty requiring the performance of a safety-sensitive function. A driver who has violated a prohibition concerning controlled substances must undergo a return-to-duty test with a negative result before returning to duty requiring the performance of a safety-sensitive function. 
  • Follow-up testing: 
    A safety-sensitive employee who has been identified as needing assistance in resolving problems associated with alcohol misuse or controlled substances use is subject to follow-up testing. The number and frequency of such follow-up testing is determined by the substance abuse professional (SAP) and consists of at least six unannounced tests in the first 12 months following the employee's return to duty. After the first year, the substance abuse professional may terminate this requirement or continue follow-up testing for another 4 years.

Testing procedures 

Alcohol confirmation tests must be conducted by a breath alcohol technician (BAT) using an evidential breath testing (EBT) device. EBTs are devices approved by the National Highway Traffic Safety Administration (NHTSA) and placed on NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL). Controlled substances tests must be conducted by urinalysis and be performed by Department of Health and Human Services (DHHS) certified laboratories.

Blood testing for alcohol or controlled substances is prohibited.

Mandatory consequences for drivers engaging in alcohol or controlled substances use conduct

Each driver who engages in prohibited conduct must be evaluated by a substance abuse professional who determines what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substances use.


Before returning to duty requiring the performance of safety-sensitive function, the driver must undergo a return-to-duty alcohol test with an alcohol concentration of less than 0.02 if the conduct involved alcohol, or a controlled substances test with a verified negative result if the conduct involved a controlled substance.

No driver with an alcohol concentration of 0.02 or greater, but less than 0.04, may perform safety-sensitive functions until the start of the driver's next regularly scheduled duty period, but not less than 24 hours after administration of the test.

Employers are not required to discipline workers who violate the prohibitions against alcohol or controlled substances use. Nor are employers required to provide or pay for rehabilitation services. These issues are left to collective bargaining agreements, or employer policies for unrepresented workers.

Starting dates

These regulations became effective January 1, 1995 for large employers. The Highway Administration defines large employers as those with more than 50 safety-sensitive employees. Small employers must implement these regulations by January 1, 1996.