7 Steps To Return To Duty Following A DOT Testing Violation (updated)

When drivers fail a DOT test or engage in other prohibited drug or alcohol behavior, their commercial driving careers are stalled until specific steps in rehabilitation and treatment are completed.

What DOT violation behaviors require action?

A commercial driver is required to go through the DOT return-to-duty process if:

  • The driver:
    • Tested positive on a DOT drug test,
    • Failed a DOT alcohol test, or
    • Refused a DOT-required drug or alcohol test.
  • The motor carrier has actual knowledge of the driver’s alcohol consumption:
    • Within four hours of coming on duty,
    • While on duty,
    • During the immediate eight hours following a commercial motor vehicle (CMV) crash.
  • The motor carrier has actual knowledge that the driver used a drug that:
    • Is listed on Schedule l (e.g., marijuana); or
    • Is a non-Schedule I drug that affects the driver’s ability to safely operate a CMV. It is not a violation if the prescribing physician told the driver it would be safe to use while on duty.

Actual knowledge occurs when information is provided to the motor carrier indicating a DOT testing violation. This might be learned through:

  • The driver’s admission,
  • The carrier’s observed drug or alcohol use,
  • A traffic citation for driving a CDL CMV while under the influence of drugs or alcohol,
  • Responses from previous employers as a part of the DOT drug and alcohol inquiry, or
  • A CDL Drug and Alcohol Clearinghouse query.

When a motor carrier learns of a testing violation on a new hire, it must obtain proof that the driver has completed the return-to-duty process. Otherwise, the motor carrier would have to begin the return-to-duty process or pick up where it left off.

To resume a safety-sensitive function, the driver must complete the following return-to-duty steps in Subpart O of Part 40.

1. Immediate response to DOT violations

When drivers engage in prohibited drug or alcohol behavior, they must be immediately removed from performing all safety-sensitive functions. If on a dispatch, a driver must be told of the test result and instructed to park the vehicle. This notification often involves making arrangements to get the driver home and continue the run with different driver.

The employer must present the driver with a list of substance abuse professionals (SAPs) who have the appropriate credentials and DOT training to perform driver evaluations. The list must be given without a fee and made available to the driver (or driver applicant) whether or not the carrier retains the driver.

If the motor carrier does not have another face-to-face meeting with the driver, this list may be mailed or emailed to the driver.

For drug test results, the medical review officer (MRO) will report the violation to the Clearinghouse. This includes shy bladder scenarios without a valid medical explanation.

Failed alcohol tests (.04 or greater BAC), actual knowledge, and certain refusal to test scenarios are reported by the motor carrier to the Clearinghouse.

2. SAP evaluation

After the SAP list is given to a driver, the motor carrier cannot force a driver to begin the process. Nevertheless, to resume safety-sensitive functions, the driver must seek a face-to-face evaluation from a qualified SAP as a first step.

Payment of the evaluation is not required of the employer. Instead, it is based on labor-management agreements and healthcare benefits.

3. Education and/or treatment

The SAP’s referral to an education and/or treatment program is based on a clinical evaluation of the driver during the face-to-face meeting. The SAP should have a working knowledge of what programs and counselors are available.

The SAP may take into consideration the driver’s ability to pay and insurance coverage. Once a SAP-approved provider has been agreed upon with the driver, the SAP will facilitate the referral and provide the program with the diagnostic determinations that led to the treatment plan. Programs range from outpatient treatment to partial or full in-patient resources.

4. Second SAP evaluation

Once the treatment plan has ended, the SAP will determine if it was a success. This decision is based on information provided by the education and/or treatment program and another face-to-face evaluation with the driver.

This second evaluation will result in one of three determinations:

  • Successful completion of the treatment plan. The driver can return to a safety-sensitive function;
  • Successful completion of the treatment plan, but additional aftercare or out-patient counseling is required. The driver can return to a safety-sensitive function; or
  • Unsuccessful completion of the prescribed treatment plan, and additional follow-up evaluations are necessary. The driver cannot return to a safety-sensitive function.

5. SAP report

If the SAP is satisfied with the driver’s ability to return to driving, the SAP will issue a report to the designated employer representative (DER). This report will list any continuing treatment and education, if required, and the number of DOT follow-up drug and/or alcohol tests required in a given time frame. The driver will be required to have a minimum of six unannounced follow-up tests in the first 12 months following the return to a safety-sensitive function. The SAP may require follow-up testing for up to five years.

For all Part 382 violations occurring since January 6, 2020, the SAP is required to report the successful completion of the evaluation and treatment to the Clearinghouse, provided the driver has designated the SAP in the driver’s personal Clearinghouse account.

6. Negative return-to-duty test(s)

The DER must wait for the go-ahead in the SAP report before sending the driver for the return-to-duty drug and/or alcohol test. All return-to-duty drug tests are performed under direct observation. The motor carrier must report a negative return-to-duty test to the Clearinghouse. In order for the “prohibited” status to be lifted from the driver’s record, both the SAP and motor carrier submission must be entered onto the driver’s record.

Once the Clearinghouse is no longer showing an unresolved testing violation, the driver can return to a safety-sensitive function.

Editor’s Note: Violations occurring prior to January 6, 2020, are not tracked in the Clearinghouse. Instead, the motor carrier would use the SAP report as a green light to perform the return-to-duty test, and once the negative test result is received, the driver can resume a safety-sensitive function.

7. Continued monitoring

After the driver returns to safety-sensitive functions, the motor carrier must carry out the unannounced follow-up tests under direct observation as prescribed in the SAP report. The DER must ensure that the tests do not have any discernible pattern.

The follow-up tests are in addition to any other DOT-required tests (e.g., random, post-accident). For instance, you cannot use a follow-up test as a substitute for a random test or vice versa.

If the driver leaves the motor carrier prior to the completion of the very last follow-up test, the next employer(s) must pick up where the process left off.

When the follow-up program is complete, the motor carrier under whose program the last test was performed must report this to the Clearinghouse. If the violation predates the Clearinghouse, the employer does not report the completed follow-up program to anyone.

Dangers of not acting on DOT violations

If the motor carrier fails to begin or continue with a driver’s DOT return-to-duty process and follow-up testing, it is an acute violation that could cost the company up to $15,876. Allowing this driver to operate a CMV puts the carrier at risk of negligent entrustment claims if there is a crash.

About the author
Kathy Close - Transportation Editor

Kathy provides regulatory support for a variety of products; her areas of expertise include transportation security, DOT drug and alcohol testing, driver qualification, and the Compliance, Safety, Accountability (CSA) enforcement model.

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