Short answer: Yes — and if they hold a CDL, they need to be in your random testing pool all the time, not just on the days they drive.

That second part is the piece most employers miss, so let’s walk through both.

Who Counts as a “Driver” Under DOT Rules

Under 49 CFR §382.107, a “driver” is anyone who operates a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL), as defined in 49 CFR §383.3. That definition is intentionally broad. It includes:

  • Full-time, regularly-employed drivers
  • Casual, intermittent, or occasional drivers
  • Leased drivers
  • Independent owner-operator contractors

There’s no carve-out for “but they only drive once in a while.” If someone operates a CMV requiring a CDL — even rarely — they’re a driver for purposes of 49 CFR Parts 40 and 382, and your drug and alcohol testing program has to cover them.

The Part Most Employers Miss: Random Pool Inclusion

Here’s the scenario that trips companies up: an employee whose day-to-day job isn’t driving — say, a warehouse supervisor or facilities employee — but who holds a CDL and could be called on, occasionally or in an emergency, to get behind the wheel of a CMV FMCSA has issued direct guidance on exactly this (§382.305-Q02):

“Such an employee must be in a random testing pool at all times, like a full-time driver. A drug test must be administered each time the employee’s name is selected from the pool.”

In other words: you don’t wait to add them to the pool until the day you actually need them to drive. If they hold a CDL and could be asked to drive a CMV, they belong in the pool continuously — alongside your full-time drivers — for as long as that’s true.

What Occasional Drivers Are Exempt From — and What They’re Not

There’s a separate, easily-confused exemption worth flagging here, because “occasional driver” doesn’t mean “skip all the paperwork.”

Under §391.63(a)(1)–(2), a motor carrier using an intermittent, casual, or occasional driver on a CMV of 10,001 lbs. GVWR/GCWR or more — which includes the heavier, CDL-required vehicles covered by Parts 382 and 383 — is exempt from two specific requirements:

  • Collecting a full employment application under §391.21
  • Conducting the previous-employer background investigation under §391.23

That’s where the exemption stops. For CMVs of 26,001 lbs. GVWR/GCWR or more, the carrier must still:

  • Have the driver furnish the information required by §383.35(c)
  • Investigate the driver’s previous DOT drug and alcohol test results under §382.413

(The carrier may also investigate previous employers under §383.35(f) — that part’s optional, not required.)

In short: hiring someone as an occasional or casual driver gets you out of the full §391.21/391.23 employment-application process. It does not get you out of checking their drug and alcohol testing history. That’s a separate, mandatory step no matter how rarely the person actually drives.

Drug Testing vs. Alcohol Testing: Not Quite the Same Rule

The same guidance draws an important distinction between the two test types:

  • Drug testing: If the employee’s name comes up in a random selection, they get tested. No exceptions for how rarely they actually drive.
  • Alcohol testing: This can only happen just before, during, or just after the employee performs a safety-sensitive function (as defined in §382.107, referencing §395.2(1)–(7) — driving and related on-duty activities). If their name is drawn but the selection period ends before they actually perform a safety-sensitive function, no alcohol test is given. Their name goes back into the pool, and the employer adjusts subsequent selections to keep the required annual testing rate on track.

Practically: an occasional driver can be drug tested even in a period where they never drove, but they can only be alcohol tested if they actually performed a safety-sensitive function during that window.

A Real-World Example

Say a company buys a box truck over 26,001 lbs. GVWR. No one’s currently hired specifically to drive it, but the operations manager holds a CDL and will occasionally move it between job sites. Does the company need a DOT drug and alcohol testing program?

Yes — per §382.103, any employer with employees operating a CMV requiring a CDL must have one in place, regardless of how often that operation happens. The operations manager goes into the random pool the same day they’re designated as someone who may drive, not the first time they actually do.

What This Means for Your Company

  • Audit your CDL holders, not just your job-titled “drivers.” Anyone with a CDL who could reasonably be asked to drive a CMV should be evaluated for program inclusion.
  • Add them to the random pool immediately once they’re designated as an occasional or on-call driver — don’t wait for their first trip.
  • Don’t forget pre-employment testing. A CDL holder must have a negative pre-employment drug test on file before performing any safety-sensitive function for the first time, even as a backup driver.
  • Check previous DOT test history under §382.413 — even if you skip the full §391.21/391.23 process. The occasional-driver exemption covers the employment application and background investigation; it does not cover the drug and alcohol testing history check.
  • Track your random selection math. Occasional drivers who don’t get alcohol-tested during a selection period (because they never drove) still count toward your pool — make sure your rate calculations reflect that.

Frequently Asked Questions:

  1. Does it matter if the occasional driver is unpaid or a contractor?
    The DOT’s definitions of “driver” and “employer” under Part 382 are broad and generally capture leased drivers and independent owner-operators, not just W-2 employees. If you’re unsure whether a specific arrangement falls under your program, that’s a good question to run by your C/TPA before — not after — the person gets behind the wheel.
  2. What if the employee never actually ends up driving during the year?
    It doesn’t matter. Inclusion in the random pool is based on eligibility to drive a CMV requiring a CDL, not on whether they were actually called upon. They stay in the pool and remain subject to selection the entire time they hold that status.
  3. Since occasional drivers are exempt from the full §391.21 employment application, does that mean I can skip checking their drug and alcohol testing history too?
    No. That’s the exemption people most often get wrong. §391.63 exempts occasional drivers from the §391.21     application and §391.23 background investigation — but for CMVs 26,001 lbs. and up, you’re still required to investigate the driver’s previous DOT drug and alcohol test results under §382.413, and collect the information required by §383.35(c).

Not sure whether everyone who should be in your random pool actually is? That’s one of the most common gaps we find during compliance reviews. Contact InOut Labs and we’ll help you check — before it becomes a Clearinghouse or audit problem.

Call us today: 847-657-7900