My Driver Failed a DOT Drug Test. What Now?

This article is for the owner or designated employer representative (DER) of a small fleet, including owner-operators who are both the driver and the employer. It walks through what 49 CFR Part 40 and Part 382 require of you, in the order you will need it.

What counts as “failed”

Under the DOT rules, a driver has a drug and alcohol violation when any of these happens:

• A verified positive drug test. The Medical Review Officer (MRO) has reviewed the laboratory result and verified it as positive.
• An alcohol test result of 0.04 or higher on the confirmation test (49 CFR 382.201).
• A refusal to test. That includes a specimen the MRO verifies as adulterated or substituted (49 CFR 40.191(b)), as well as not showing up for a test, leaving the collection site, or refusing an observed collection when one is required.

Today: take the driver off safety-sensitive duty

The moment you learn of the violation, the driver may not perform any safety-sensitive function for you, including driving a commercial motor vehicle. The rules say this several times over: 49 CFR 382.215 for a positive, adulterated or substituted drug test; 382.201 for alcohol at 0.04 or higher; 382.211 for a refusal; and 382.501 for removal after any violation.

Then give the driver a list of SAPs. Under 49 CFR 40.287, you must give every employee who violates the DOT drug and alcohol rules a list of SAPs who are readily available to them and acceptable to you, with names, addresses and phone numbers. You cannot charge for the list. This applies even if you are letting the driver go. You can provide the list yourself or through your consortium/third-party administrator (C/TPA). TrueTest Labs can give you a list of SAPs to send your driver.

A pending split specimen request does not change any of this. The driver stays off safety-sensitive duty while Bottle B is tested.

The Clearinghouse: who reports what

Reporting to FMCSA’s Drug and Alcohol Clearinghouse is split between the MRO and you (49 CFR 382.705):

Employer reports are due by the close of the third business day after you get the information. Any employer can designate a C/TPA to make these reports, though you remain responsible for them. An owner-operator who employs themselves as a driver must designate a C/TPA (382.705(b)(6)). If you have designated TrueTest as your C/TPA in the Clearinghouse, TrueTest can report the return-to-duty result for you.

You don’t have to keep the driver

Whether to keep, return or rehire the driver is your personnel decision. The rules do not require you to put a driver back to work, even after they finish the return-to-duty process (49 CFR 40.305(b)).

Firing the driver does not erase the violation. The driver cannot perform safety-sensitive functions for any DOT employer until they complete the return-to-duty process (49 CFR 382.503). The violation also stays visible to employers who query the Clearinghouse until the SAP has reported, the negative return-to-duty result has been reported, all follow-up tests are complete, and five years have passed since the violation (49 CFR 382.719).

If you keep or rehire the driver

The return-to-duty process runs in this order:

1. SAP evaluation. The driver chooses a SAP and is evaluated.
2. Education and/or treatment, as the SAP recommends.
3. SAP follow-up evaluation. The SAP determines whether the driver has successfully complied.
4. Return-to-duty test, directly observed. A return-to-duty drug test must be collected under direct observation (49 CFR 40.67(b)).
5. A negative result before any safety-sensitive work. That means a negative drug test result and/or an alcohol concentration below 0.02 (49 CFR 40.305(a)).

Follow-up testing

The SAP writes the follow-up testing plan and gives it to you, the employer (49 CFR 40.307). Under 49 CFR 382.311, follow-up testing follows Part 40, subpart O:

• At least six unannounced follow-up tests in the first 12 months after the driver returns to safety-sensitive duty. The SAP can require more tests, and for longer — up to five years.
• For up to five years. The SAP can extend follow-up testing through the 48 months after that first year.
• Directly observed. Follow-up drug tests, like the return-to-duty test, are collected under direct observation (49 CFR 40.67(b)).
• Unannounced, on dates you choose. The tests must have no discernible pattern, and the driver gets no advance notice. Neither you nor anyone else may give the driver a copy of the schedule (49 CFR 40.307(g), 40.309(b)).
• In addition to random testing. A random test cannot be counted as a follow-up test (49 CFR 40.309(c)). The driver stays in your random pool too.
• The plan follows the driver. If the driver moves to another employer, the remaining follow-up tests go with them (49 CFR 40.307(e)).

TrueTest Labs takes the SAP’s follow-up plan, builds an unannounced testing schedule, and tells you — not the driver — when each test is due. Follow-up tests are in addition to your driver’s random testing.

If the driver says the test was wrong

A driver with a verified positive can ask the MRO to have the split specimen tested at a second laboratory. How that works, and what you do while it is pending: My driver tested positive and requested a split specimen retest. Now what?

What TrueTest does

• Directly observed return-to-duty and follow-up collections, at our Elk Grove Village location or at a collection site near your driver.
• Keeps the follow-up schedule and keeps the dates unannounced. The driver never sees the schedule.
• Reports the return-to-duty result in the Clearinghouse for employers who have designated TrueTest as their C/TPA.

The price is $65 per DOT test, plus $50 for a directly observed collection. TrueTest does not do SAP evaluations; the driver chooses a SAP from the list you provide.