What is a Violation?
An employee who engages in prohibited conduct related to alcohol and controlled substances will have a violation. Most of these violations will be a positive test for alcohol and/or drugs.
However, there are other conducts that DOT considers to be violations, and an employer must be aware of them.
Each of the transportation modes has its own prohibited conducts. It is important to understand that not all the modes have the same set of prohibited conducts. For example, possession of alcohol or drugs is a prohibited conduct under FRA rules; however, possession of alcohol or drugs is not listed as a prohibited conduct for the other five modes.
Most of the transportation employers and employees (almost 90%) are covered by FMCSA regulations. For that reason, here is a list of the FMCSA prohibited conducts (violations) as listed in 49 CFR Part 382, Subpart B, Prohibited Conducts. (To find prohibited conducts of any of the other transportation modes, please go directly to the regulations for that particular mode.)
ALCOHOL PROHIBITED CONDUCT (FMCSA VIOLATIONS)
1. Testing positive (0.04 and above) on an alcohol test. [382.201]
2. Using alcohol while on duty [382.205]
3. Providing safety-sensitive functions within four hours of consuming any alcohol [382.207]
4. Consuming alcohol in the 8 hours following an accident, unless an alcohol test was conducted as a result of the accident [382.209]
5. Refusing to submit to a required alcohol test [382.211]
CONTROLLED SUBSTANCES PROHIBITED CONDUCT (FMCSA VIOLATIONS)
1. Testing positive for controlled substances [382.215]
2. Using any controlled substance without authorization (prescription) [382.213]
3. Refusing to submit to a required controlled substance test [382.211]
Each of these is a violation. The employee with any one of these violations must be immediately removed from safety-sensitive functions, including driving, and cannot return to safety-sensitive duty until and unless he/she successfully completes a SAP return-to-duty process.
Just as each transportation mode has its own set of violations, each mode also has its own definition of safety-sensitive functions. The removal from safety-sensitive duty applies to all of those functions, as they are identified in each of the modal rules.
If we look at the regulations for FMCSA, 382.107: Definitions: safety-sensitive function, we find a list of what FMCSA considers to be safety-sensitive functions:
• All time waiting to be dispatched
• Loading or unloading, or supervising loading or unloading
• All time at the driving controls
• All time in or on the Commercial Motor Vehicle, with the exception of time spent resting in a sleeper berth
• All time servicing or conditioning a Commercial Motor Vehicle
• All time repairing or getting assistance with a disabled vehicle
382.501 states that a driver with a violation must be removed from safety-sensitive functions, including driving. If that driver is a mechanic, the mechanic could not continue to work on Commercial Motor Vehicles. A school bus driver could not be reassigned to washing windows in the buses, or cleaning the buses, as that would be "servicing or conditioning" a Commercial Motor Vehicle.
Alcohol tests must be only in relation of these safety-sensitive functions
Because alcohol tests are conducted only around the time when an employee performs safety-sensitive functions, these are also the only times that a random, post-accident, reasonable suspicion and follow-up alcohol test can be conducted. If an employee is not performing these functions at the time, the employee cannot be tested for alcohol.
Note: Safety-sensitive function is also defined by FMCSA as any time that a driver is "in readiness" to drive. A mechanic who holds a CDL and test drives a CMV, or a management driver with a CDL who occasionally drives a CMV, could be considered to be "in readiness" at all times, because while they may not be on a specific driving schedule, they may have to drive at some time, but they may never know precisely when. They are always "in readiness" to drive.
What is NOT a violation?
Not everything is a violation. Employers mistakenly assume that a SAP return-to-duty process is required in two other situations. If either of these following situations occurs, the employee should not be required to complete a SAP return-to-duty process.
1. A driver receives a DUI/DWI in his/her private vehicle, while off-duty.
This is not a DOT violation. The regulation does not require this driver to be removed from duty. DOT's rule applies only to the employment setting, i.e., when an employee is on duty, working for the employer. The rule also applies only to the specific vehicles that a described as Commercial Motor Vehicles. An employee, on personal time, in the family car, is not operating under this regulation. (An employer may establish separate reporting requirements and rules related to a DUI/DWI, and may require the driver to have a chemical use evaluation by an EAP or by an independent evaluator, but that would be under the employer’s independent authority, and not under 49 CFR Part 382.) But this employee should not be required to complete a SAP process. Further, the rules do not permit a SAP to conduct a SAP return-to-duty process on this employee. For example, there is no authority for DOT follow-up testing of a driver who is issued an off-duty citation while driving a personal vehicle.
2. A driver’s alcohol test result is between 0.02 and 0.039.
This is not a DOT violation. (Violations are listed in Subpart B. This is found not in Subpart B, but in Subpart E, 382.505, under the heading “Other alcohol-related conduct”.) DOT requires only that this employee be removed from safety-sensitive functions for 24 hours. After 24 hours have passed, this employee can be returned to work. There is no return-to-duty test, and there is no SAP return-to-duty process.