Drugs, Alcohol, and Non-CDL CMV Drivers

Suppose a driver operating a box truck appears impaired. What are the motor carrier’s obligations and options in the regulations?

General operating rules place drug and alcohol restrictions on commercial drivers. But these same regulations don’t offer a mechanism for motor carriers to respond to or reinstate drivers operating vehicles that don’t require a commercial driver’s license (CDL).

A first step is to examine the regulations that may apply to the situation. After that, any gray areas may require some human resource (HR) knowledge to create company policies.

Drug & alcohol restrictions

Sections 392.4 (drugs) and 392.5 (alcohol) apply to all commercial motor vehicles (CMVs), since they use the general definition of that term from in 390.5. This definition includes both non-CDL and CDL vehicle types.

Drugs. Section 392.4 states a CMV driver can’t be on duty and possess (unless manifested), be under the influence, or use a drug or substance unless the exception in 392.4(c) is met. The rule is very broad and restricts any drug, including an over-the-counter medication, that impacts driver safety.

The exception allows for a substance, providing:

• It is administered to a driver by or under the instructions of a licensed medical practitioner;
• The licensed medical practitioner told the driver it won’t affect the ability to safely operate the CMV; and
• The drug is not a Schedule I drug, a classification given by the Drug Enforcement Administration.

Marijuana is currently a Schedule I drug, so state laws legalizing marijuana and CBD products containing marijuana don’t change the federal requirement.

Alcohol. Section 392.5 restricts alcohol use or being under the influence of alcohol while on duty or within four hours of coming on duty or operating a CMV. The regulation takes it a step further by stating the driver can’t have any measured alcohol concentration or detected presence. Like drug restrictions, drivers can’t possess (even unopened) alcohol in the CMV, unless manifested or possessed by bus passengers.

Both rules place a burden on the motor carrier by stating they can’t “require or permit” the driver to violate these requirements.

Non-CDL drivers handled differently than CDL

It’s easy when it’s a CDL CMV. The carrier’s DOT testing program under Part 382 overlaps and offers instructions.

It gets tricky when the event occurs while operating a non-CDL CMV. There is no testing mechanism under DOT authority.

For alcohol, the rules require the driver to be placed out of service for 24 hours.

It becomes a licensing issue if the drug or alcohol violation is learned through an enforcement stop. A traffic conviction for driving a CMV while under the influence will result in a loss of CMV driving privileges (391.15).

However, if the violation is learned of through the motor carrier, much is left to their discretion. Consider these possible options:

• If the driver is using a drug that impacts safety or has an alcohol problem, the employer can use 391.45(g) to send the driver for a new medical exam. Drug use and a current clinical diagnosis of alcoholism both prevent medical certification. It puts the decision in the hands of the medical examiner and not the employer.
• The employer can send the driver for a non-DOT drug and/or alcohol test. However, it’s important to note that any failed or refused tests hold no DOT consequences. Company policy dictates the next move (e.g., discipline, termination, treatment). A non-DOT program must follow state and federal employment laws, which may address the consequences of a positive test marijuana. Some states restrict testing for marijuana.

When can a driver return to work?

Motor carriers are told they can’t permit a driver to violate these requirements. It is up to the carrier to decide if the driver no longer poses a safety risk. Have they stopped using drugs or alcohol?

One option to address this is to have a second-chance policy, requiring anyone failing a non-DOT test to undergo treatment. This policy should be reviewed by the HR department.

Key to remember: When a non-CDL CMV driver uses drugs or alcohol, there are no instructions to the employer on how to respond to the violation. Motor carriers are faced with creating policies and procedures that are a blend of regulation and best practice — and should always reviewed by an HR expert.