Random Testing

From the DOT Publication Best Practices for Random Drug and Alcohol Testing.

“Is the boss singling me out? I just did a random last month? Joe, never gets tested? I don’t think this thing is random at all!” Those are not uncommon concerns among some safety-sensitive employees, and many employers have been challenged in court to demonstrate that their programs are truly random. The reality is that in a truly random selection process, a high probability exists that some employees will be selected several times while others may never be selected. Why? Because after each selection, the employee’s name is returned to the same pool, and he or she becomes just as likely as anyone else to be selected next time.

From the DOT Publication Best Practices for Random Drug and Alcohol Testing.

It is the best practice for an employer to document everything on the entire random testing process. This includes the numbers, names drawn, dates and times of notification, dates and times of collections, why a selected employee was not tested during a selection cycle, etc. If you’re not sure, document it!

Best Practices:

  • Service agents and C/TPAs providing random selection and testing services to employers should monitor on an ongoing basis (daily or weekly) the random tests that have been completed and compare them to those that were selected. If a random test has not been completed in an acceptable timeframe (within a day or week) of the expected test date, the service agent or C/TPA should contact the employer to determine the status of the test and take the necessary steps to ensure the test is completed within the selection period.
  • Employers, service agents, and C/TPA should not wait until the end of the selection period to reconcile the random testing numbers. This is a weak business practice that we want to discourage. Remember: You must maintain all your testing records in accordance with industry specific regulations. For more information, see the document, “Employer Record Keeping Requirements for Drug and Alcohol Testing Information.”

From the DOT Publication Best Practices for Random Drug and Alcohol Testing.

When an employee is notified, he or she must proceed immediately to the collection site. Contrary to the urban legends circulating among some employees, immediately does not mean two hours. Immediately means that after notification, all the employee’s actions must lead to an immediate specimen collection.

Why? For the integrity of the testing process. Best Practice: Many employers develop random testing procedures or policies that clearly state what activities are acceptable after notification: for instance, which safety-sensitive duties Agency regulations permit them to complete. If an employee is notified of a random test while working “off site” or “on the road,” the company’s policies should spell-out exactly what the employee must do before resuming safety-sensitive functions. That way there is no misunderstanding among employees about what is expected. Note to Service Agents and Consortia/Third Party Administrators: Owner-operators and other employers who themselves perform safety-sensitive duties present a special notification challenge. So, if you are a service agent or C/TPA providing random selections and notices to an owner-operator, you should have written procedures on how they are notified and instructed after notification on when to report to a specific collection site. You must also have a written policy about what constitutes a refusal to test if they fail to appear for a test when notified. You should also provide these written items to these owner-operators and self-employed safety-sensitive employees.

From the DOT Publication Best Practices for Random Drug and Alcohol Testing.

Every employee should be discreetly notified according to your company’s policy, but random testing must also be conducted in strict confidence with a limited number of people having knowledge of the selection list. Why? Because it helps maintain the element of surprise. Best Practices: Every employer should have procedures in place to ensure that each employee receives no advanced notice of selection. But, be sure to allow sufficient time for supervisors to schedule for the administration of the test and to ensure that collection sites are available for testing. Remember: Employers must provide appropriate privacy for each employee the fact that he or she is being tested.

From the DOT Publication Best Practices for Random Drug and Alcohol Testing. Let’s see what happens if an employee is not available for random drug testing.

Best Practices For Random Drug Test

  • If an employee selected for testing is known to be unavailable during the selection cycle (legitimate extended absence, long-term illness, etc.), document the reason and make-up the rate shortfall by making another selection, or make an extra selection during the next selection cycle.
  • An employee is selected for testing but has not received notice since it is his day off, test the employee during his or her next shift within the same selection cycle.
  • No employee should be excused from testing because of operational difficulties. See your industry specific regulations and interpretations for legitimate exceptions.
  • Once the employee is notified to report for testing and the test does not occur, the opportunity for the random testing is over. There is no second “bite of the apple.”

If an employer is audited by the DOT,  FMCSA or state regulating organization, the auditor will often ask for documentation for tests that were not completed.

Employers need to have policies in place about what to do when an employee is not available for random drug testing.

Further Reading about Random Drug Testing

Find out how often should random testing take place from the DOT Publication Best Practices for Random Drug and Alcohol Testing.

What makes random testing so effective is the element of surprise.

While employees know they will be tested, they are never quite sure of when, so random selections and testing should be performed at least quarterly. This is guidance from the DOT, and not specifically in the regulations. At InOut Labs, we have a consortium designed for seasonal employers where no selections are made in Q1.

Some employers select and test more frequently, which is a good idea when it comes to how often should random testing take place.

In an effective random drug testing program, testing must be spread equally throughout the year.

Best practices: Here are smart things you can do to figure out when to test:

  • Spread testing dates reasonably throughout the year in a non-predictable pattern.
  • Conduct random drug tests anytime employees are on duty or while performing safety-sensitive duties. See your Agency regulations for your specific industry requirements of when to conduct testing. FRA has “hours of service” testing considerations.
  • Conduct random alcohol tests just before, during, or just after the employee performs a safety-sensitive job, as described in your industry specific regulations.
  • Each workday or weekend, you can enhance the non-predictability of your program by conducting tests at the start, middle, or end of each shift. The worse thing that could happen is for employees to say, “Yup, the last Friday of every month the second shift gets tested.”

Interested in how are employees selected for random testing? Find out the details from the DOT Publication Best Practices for Random Drug and Alcohol Testing.

Everyone in a random testing pool must have an equal chance of being selected and tested in each selection period.

Be sure to use a scientifically valid method to select employees for testing, which may include: use of a random-number table, a computer-based random number generator that’s traceable to a specific employee (or with FRA, a group).

At InOut Labs, we use an industry-specific software package which meets all DOT requirements, allows us to select alternates, send notifications to employers, and even “check them off the list” when tests are completed.

Note: In the railroad industry, it is a common practice to select employees by the train number rather than specific employee. This would mean that any covered employee working on that train on a specific day (whether it was their regularly assigned position or not) would be tested. Only the FRA permits this practice.

Warning: Unacceptable random selection practices include selecting numbers from a hat, rolling dice, throwing darts, picking cards, or selecting ping pong balls.

The following chart outlines the annual minimum drug and alcohol DOT random testing rates
established within DOT Agencies for 2022.
DOT Agency
2022 Random Drug Testing Rate
2022 Random Alcohol Testing Rate
Federal Motor Carrier Safety Administration [FMCSA]

The DOT random testing rates did not change for 2022.  Because the random rates did not change, FMCSA is not required to publish a notice in the Federal Register.  The rate last changed in 2020.


Federal Aviation Administration [FAA]
2022 Random Rate Federal Register Notice



Federal Railroad Administration [FRA]
2022 Random Rate Federal Register Notice

Covered Service

Covered Service

Maintenance of Way

Maintenance of Way

Federal Transit Administration
2022 Random Rate Federal Register Notice



Pipeline & Hazardous Materials Safety Administration
2022 Random Rate Federal Register Notice




NOTE: Employers (and C/TPAs) subject to more than one DOT Agency drug and alcohol testing rule may continue to combine covered employees into a single random selection pool.

USCG covered employees may be combined with DOT covered employees in drug testing pools even though the USCG is now part of the Department of Homeland Security.

No. Any employee who is available to drive must be in a Random testing program and must report for testing when selected. By regulation, an alternate cannot be substituted. If he does not report for testing when instructed to, this is a Refusal to Test and must be reported to the FMCSA Clearinghouse. He does not want that and needs to go.

If your wondering if you can tell the driver on Friday afternoon that he has to go for a Random drug test before work on Monday the short answer is: No. You are not to provide any advanced notification of a Random selection. The key to Random testing is that the tests are unannounced.

Current FMCSA Random testing requirements regarding how many random tests must be done in a calendar year are 50% for drugs and 10% for alcohol.

If your drivers are in a consortium pool for Random selections, the group needs to meet the minimum testing requirements for drugs and alcohol. All you need to do to be in compliance with your Random requirement is to send your employees in for testing when you receive a Random selection.

If your drivers are in a company pool, then you will need at least 8 drivers random tested for drugs and 2 for alcohol to meet the 50% and 10% requirements.

Are you wondering when to send employees for random testing? If you are a client of InOut Labs, your DER will receive an email from us with your selection list for the period. The DER chooses the time to send the employees for testing, and is responsible for completing the tests by the end of the selection period (usually the end of the quarter).

Remember that once notified, the employee is to proceed immediately for testing. Not tomorrow, or a week from Tuesday. Now.

Yes. The only time an individual is not allowed to drive his/her CMV to the collection site is for Pre-Employment or Reasonable-Suspicion testing. You’ll want to confirm the collection site has appropriate parking facilities, of course.

If you are planning to do a random drug and alcohol testing during a weekend safety meeting, here is what you should know: you can do a Drug test, yes. Alcohol test, no. Since drug use is prohibited at all times, you can conduct random drug tests at any time. But Random alcohol tests must be conducted just before, during or after a driver has performed safety-sensitive functions (e.g., drive). Wait until a regular work day to send the employee for a Random alcohol tests.

Why are some people randomly tested more than once?

“Am I being singled out? I just did a random last month? Mike never gets tested. I don’t think this thing is random at all!”

Those are not uncommon concerns among some safety-sensitive employees, and many employers have been challenged in court to demonstrate that their programs are truly random. The reality is that in a truly random selection process, a high probability exists that some employees will be selected several times while others may never be selected.

Why? Because after each selection, the employee’s name is returned to the same pool, and he or she becomes just as likely as anyone else to be selected next time

Random selections are generated from an unbiased computerized selection program. As such, every employee in the testing pool has an equal chance of being selected during each selection period. Some employees are selected multiple times during the calendar year, while others may not be selected at all.

An employee can be randomly selected multiple times during a calendar year. Employees have an equal chance of being selected in each selection period, regardless of prior selections. See this post for details.

No. The employee who was randomly selected for random drug tests must be tested. You cannot get an alternate selection or send another employee simply because an individual has been selected multiple times. The DOT regulations require it and the integrity of your random drug testing program depends on it.

This one can be complicated.

If the employee is not presently working and available to perform safety-sensitive functions, he should not go for testing at this time. Document the reason and select an alternate.

If the individual is driving, or available to drive, did the prescribing physician know that he drives for a living? The doctor may decide he shouldn’t drive while on the pain medication or may be able to prescribe something different that won’t affect his driving.

Should the result come back positive, the MRO would call him and discuss the result and the driver would would be asked to produce the prescription which the MRO will verify. If the prescription is valid, the result will be reported as negative. BUT, the MRO may attach a safety concern.

If you have a reasonable suspicion that a DOT-regulated safety-sensitive employee may be using drugs, you are to send him for a Reasonable Suspicion drug test. Your determination to test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. The supervisor making the Reasonable-Suspicion determination must be trained in reasonable suspicion.

Conducting a “random” test without documentation that shows how the individual was selected could put your company at risk for legal action. See What exactly IS a “random” drug test?

InOut Labs generally selects randoms quarterly (i.e. four times per year). Some clients, however, prefer monthly selection. We also manage a number of seasonal employers for whom we make selections Q2, Q3 and Q4 only. Regardless of how often selections are made, we always make sure that the selection percentages are performed according to the federal regulations.

When random selections are made, your company’s Designated Employer Representative (DER) is provided with the list of selected employees. The DER chooses the time for testing within the quarter and notifies each employee at the appropriate time.
Your DER is permitted to schedule that testing when it is convenient for your company. Although the employee cannot be notified ahead of time, the DER can schedule the test when the employee’s brief absence from work for testing would cause the least amount of disruption. Keep in mind that once notified, the employee must proceed immediately for testing.

It depends.

Clearly if the employee has been terminated, he can’t be tested.

But what if he’s sick when the on-site drug test collector shows up? Or he’s on vacation?

For non-regulated (N0n-DOT) employers, it’s really up to the employer and the written drug-free workplace policy. It’s recommended, though, that you follow the DOT model for random testing.

For DOT drug testing, following are the best practices according to ODAPC (Office of Drug & Alcohol Policy & Compliance) when a selected employee is not available.

Best Practices:

  • If an employee selected for testing is known to be unavailable during the selection cycle 
(legitimate extended absence, long-term illness, etc.), document the reason and make-up the rate shortfall by making another selection, or make an extra selection during the next selection cycle. 

  • An employee is selected for testing but has not received notice since it is his day off, test the employee during his or her next shift within the same selection cycle.
  • No employee should be excused from testing because of operational difficulties. See your industry specific regulations and interpretations for legitimate exceptions. 

  • Once the employee is notified to report for testing and the test does not occur, the opportunity for the random testing is over. There is no second “bite of the apple.”

For instance:

If Max is out sick on the day of testing, he clearly should be tested in the current selection period as opposed to testing an alternate employee. If Max is out for the entire selection period, then an alternate may be selected. Or, the shortfall for the selection period can be made up in the following period, provided it’s not the final period of the year. You need to meet or exceed the minimum random testing percentage for the year.

The last bullet point regarding the second “bite of the apple” is one that merits particular attention. Under DOT guidelines, when an employee is notified of a random test s/he must proceed IMMEDIATELY for testing. Not tomorrow. Not when the shift ends. Immediately.

The employer gets to decide when to notify the employee, but once notified, the employee’s next actions should result in a drug test without undue delay. If he does not proceed immediately, it is a refusal to test.

Random testing is important for any drug and alcohol testing program, regulated or not. It is the most effective deterrent to drug and alcohol use in the workplace. But if not managed properly and consistently, it loses its effectiveness.

Properly managed employee drug testing benefits employers and employees alike:

  • Saves lives
  • Prevents injuries
  • Improves productivity
  • Helps employers identify workers with substance abuse issues – and gets them help
  • Enables employees to easily say no to illegal drug use. (“No, thanks. They drug test at work.”)
  • Reduces employer liability

Can employee drug testing be accurate and fair? If it’s not, you’re not doing it right. Get in touch with us to set up drug testing at your workplace.

General Drug Testing Questions

Yes, as long as the ID has been expired for one year or less.

DOT offers guidance in the preamble to the oral fluid final rule, 88 Federal Register 27605 (May 2, 2023):

“[T]he issue of employees using expired forms of identification at the collection site has been an ongoing problem. As we have advised for several years, we want collectors to know it is acceptable to accept an expired photo ID issued by a Federal, State, or local government agency, if the ID has not been expired for more than 1 year.  This information is contained in the current Office of Drug and Alcohol (ODAPC) Urine Collection Guidelines and will be added to the ODAPC Oral Fluid Specimen Collection Guidelines.”

[Credit: NDASA Member Minute 9/20/23]

Screening and confirmation testing are performed using different methodologies that require different cutoff levels. The cutoff levels of an immunoassay (screen) are typically higher than those of a more sensitive GC-MS or LC-MS/MS confirmation test. The reason is that they test for a larger group of parent compounds, metabolites and other structurally similar compounds.

If a screening test detects a drug (above the screening cutoff level) the presumptive positive specimen is then sent for confirmation testing (GC-MS or LC-MS/MS ). Confirmation testing identifies the specific drug or metabolite. Often these individual compounds are present in concentrations much lower than the total immunoassay response, thus the need for lower cutoffs for GC-MS or LC-MS/MS testing. This is the reason why screening and confirmation cutoff levels are different.

Note: When you hear the term “false positive,” it generally refers to a test that was non-negative on an immunoassay test and not sent for confirmation testing. The nature of a screening test is to “cast a wide net.” Some non-negative screening results end up negative when sent for GC-MS.


Understanding drug test results can be a challenging task. Here are some details to help with the understanding drug test results:

Positive – Presence of drugs above the cutoff level

Adulterated – Something has been done to alter the sample

Shy Bladder – Inability to provide a sample

Substituted Specimen / Invalid Specimen – Substance provided was something other than human urine and could not be tested

Negative Dilute – Sample is too diluted to provide results, usually because of excessive water consumption before the drug test often in an attempt to ‘flush’ drugs out of the system and buy time. A retest is often required.

Positive Dilute – A diluted sample but there is a positive result identified within the sample. Positive is positive.

Temperature Out of Range – Sample is is too hot or too cold, which often indicates adulteration or substitution. This will require a second drug test right away, possibly under direct observation, to ensure it is a valid sample. Urine samples are required to be between 90 and 100 degrees Fahrenheit when read within 4 minutes.

Refusal to Test – The donor has been unwilling to provide a usable sample.

Negative – No presence of drugs above the cutoff levels

Drug testing detects the presence of drugs and drug metabolites using cutoff levels to determine whether a specimen tests positive or negative for the use of a specific drug. A cutoff level is a threshold. If the concentration of a drug is above the cutoff, it is a positive result. If it is below, it is negative.

Note that a negative result does not mean “no drugs.” It merely means that if any drugs are present, they are below the cutoff level.

Screening level vs. confirmation level

In workplace drug testing, the standard process involves potentially two steps: an initial screen, followed by a confirmation test, but only if the screening test was non-negative.

The initial test is a quick screen that separates negative specimens from further consideration. The confirmation test uses gas/liquid chromatography-mass spectrometry (e.g., GC-MS, LC-MS/MS) or a similar method, which can specifically identify and quantify the drug/metabolite in the specimen.

What does ng/mL and pg/mg mean?

Cutoff levels are expressed in nanograms (ng) per milliliter (mL) for urine drug testing and oral fluid drug testing or picograms (pg) per milligram (mg) for hair drug testing. These denote the concentration level of the drug metabolite.

Each specimen type and drug tested has a different detection window. As a broad generalization, a hair test will detect up to 90 days of use (but not the most recent week). Oral fluid can detect drugs from a few minutes ago up to 3 or 4 days for some drugs. And urine is good for a few hours up to 4 days for most drugs, but 30 days or more for heavy marijuana use.

Federal drug testing cutoff levels

Cutoff levels for federally regulated drug testing programs are established based on mandatory guidelines set by U.S. Department of Health and Human Services (HHS). The US Department of Transportation follows the Federal guidelines. Rule 49 CFR Part 40 for details on testing and procedures.

Non-Federal (aka Non-DOT) drug testing cutoff levels

Many non-regulated employers mirror the cutoff levels established by the government while others customize their drug testing panels to be more sensitive to certain drugs based upon their program needs and unique workforce. Mirroring is generally good practice as it keeps the program defensible.

Lab-based urine drug test common cutoff levels

Substance Screen cutoff Confirmation cutoff
Amphetamines 500 ng/mL 250 ng/mL
Cocaine metabolites  150 ng/mL 100 ng/mL
Marijuana metabolites 50 ng/mL 15 ng/mL
MDA-analogues 500 ng/mL 250 ng/mL
Opiates 2000 ng/mL 2000 ng/mL
6-Acetylmorphine (6-AM) 10 ng/mL 10 ng/mL
Opiates (semi-synthetic) 300 ng/mL 100 ng/mL
Oxycodones 100 ng/mL  100 ng/mL
Phencyclidine (PCP)  25 ng/mL 25 ng/mL

Urine specimen 5-panel drug test cutoff levels

Substance Screen cutoff Confirmation cutoff
Amphetamines 1000 ng/mL 500 ng/mL
Cocaine metabolites 300 ng/mL 150 ng/mL
Marijuana metabolites 50 ng/mL 15 ng/mL
Opiates 2000 ng/mL 2000 ng/mL
Phencyclidine (PCP) 25 ng/mL 25 ng/mL

Urine specimen 9-panel drug test cutoff levels

Substance Screen cutoff Confirmation cutoff
Amphetamines 1000 ng/mL 500 ng/mL
Cocaine metabolites 300 ng/mL 150 ng/mL
Marijuana metabolites 50 ng/mL 15 ng/mL
Opiates 2000 ng/mL 2000 ng/mL
Phencyclidine (PCP) 25 ng/mL 25 ng/mL
Barbiturates 300 ng/mL 300 ng/mL
Benzodiazepines 300 ng/mL 200 ng/mL
Methadone 300 ng/mL 200 ng/mL
Propoxyphene 300 ng/mL 200 ng/mL

Instant urine drug test common cutoff levels – Note that an instant test (aka “rapid” or “POCT”) is a screening test, and non-negative results need to be confirmed by laboratory testing.

Instant test cutoff levels can vary tremendously from one manufacturer to another.

Substance Screen cutoff
Amphetamines 1000 ng/mL
Methamphetamines 1000 ng/mL
Cocaine/metabolite 300 ng/mL
THC/metabolite 50 ng/mL
Opiates 2000 ng/mL
Phencyclidine (PCP) 25 ng/mL

Oral fluid drug test common cutoff levels

Substance Screen cutoff Confirmation cutoff
Amphetamine 150 ng/mL 120 ng/mL
Cocaine metabolites 15 ng/mL 6 ng/mL
Marijuana 3 ng/mL 1.5 ng/mL
Methamphetamines 120 ng/mL 120 ng/mL
Opiates 30 ng/mL 30 ng/mL
Oxycodones 30 ng/mL 30 ng/mL
Phencyclidine (PCP) 3 ng/mL 1.5 ng/mL

Hair drug test common cutoff levels

Drug Screen cutoff Confirmation cutoff
Methamphetamines 500 pg/mg 500 pg/mg
MDMA 500 pg/mg 500 pg/mg
Amphetamine 500 pg/mg 500 pg/mg
Cocaine/metabolites 500 pg/mg 500 pg/mg
Benzoylecgonine 500 pg/mg 500 pg/mg
Marijuana metabolite 1.0 pg/mg 0.1 pg/mg
Opiates (MOR &/OR HYM) 200 pg/mg 200 pg/mg
Opiates (COD &/OR HYC) 200 pg/mg 200 pg/mg
6‐Acetylmorphine (6‐AM) 200 pg/mg 200 pg/mg
Oxycodone 200 pg/mg 200 pg/mg
Oxymorphone 200 pg/mg 200 pg/mg
Phencyclidine (PCP) 300 pg/mg 300 pg/mg


49 CFR Part 40 requires that a donor be allowed up to three hours after an initial failed attempt to produce a sufficient urine specimen. During this time, the donor may drink up to 40 ounces of fluid spread over the three hour period. For this reason, many collection sites have a cutoff time for accepting new donors for urine drug test collections. Shy bladder process.

Question: If an employee is not able to provide enough urine during the collection process, and the employee must undergo a medical examination to determine if there is a legitimate medical explanation for the “shy bladder,” can the employer make arrangements for the employee to see an employer-designated physician?

Answer: Yes. When an employee is not able to produce a sufficient volume of urine for a drug test, the employer is required to direct the employee to obtain a medical evaluation from a licensed physician who is acceptable to the Medical Review Officer (MRO) and has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen. The employer can facilitate the medical evaluation by scheduling an appointment for the employee with a MRO-approved physician.

Labs conduct specimen validity testing which detects adulterants. With hair and oral fluid testing, adulteration is much more difficult than with urine.

Yep. It happens. We catch a lot of them, but some inevitably slip though.

Remember that your drug testing program is mostly about deterrence. We get a fair number of positives, but there would be a lot more drug use if there were no testing at all.

A number of safeguards in the collection process help prevent donors from substituting clean urine for their own. Bags and outer clothing are removed, pockets are checked, and the temperature of the urine specimen is checked.

If he’s a regulated employer, no.

A regulated employee (e.g. driver, under FMCSA) must complete the Return-to-Duty process. If he wants to return to work as a driver, he must contact a Substance Abuse Professional (SAP) and complete the Return-to-Duty process — even if he is not hired or is terminated. Your company’s drug and alcohol testing policy will determine whether s/he is terminated or offered a Last Chance Agreement.

Seems like it might be. But it’s not.

A workplace drug test is a toxicology test, whereas a medical test is a clinical test. In fact, these tests are conducted in different facilities on different equipment. Labs like Quest Diagnostics and Labcorp conduct clinical tests and toxicology tests in totally different cities. 

Chain of custody

An employment drug test requires a chain of custody. A chain of custody is exactly what it sounds like. It prevents specimens from being mixed up, protecting both employer and employee. At the time of collection, the specimen is sealed and initialed by the donor. Bar codes and numbers connect the specimen and its associated paperwork. It is tracked from time of collection until final testing is completed. If the chain is broken, the test is canceled.

Drug test results must hold up in a court of law, and the chain of custody is critical.

Precautions are, of course, taken not to mix up medical specimens too, but there is no legal chain of custody.

Different kinds of doctors.

Medical tests must be ordered by a doctor. Drug tests do not have that requirement. But drug test results (especially when positive) should be reviewed by a Medical Review Officer, or MRO. An MRO is a specially trained physician who will, among other things, interview donors and validate prescriptions. An MRO-reviewed test result is considered final.

Do You Really Need a Medical Review Officer (MRO)?

So, even though a biological specimen (urine, saliva or hair) is collected and is sent to a lab, a drug test is not a medical test.

And courts support this.

Federal Appeals Court Holds Test For Illegal Drugs Is Not An Impermissible Medical Examination, Even If Test May Reveal Lawful Drug Use

Employers are responsible for providing a safe place to work. To that end, employee drug testing is a critically important tool. 

But drug testing must be conducted properly, with a proper chain of custody and medical review of all positive results. InOut Labs conducts drug tests all across the U.S. With a chain of custody. And with an MRO.

Good question, and as an employer, it’s a question you should be asking.

Other than the well-know benefits to safety, productivity and culture, if you’re going to spend time and money to drug test new hires and employees, it would be nice to know if there is a reasonable return on investment.

Quest Diagnostics has published a calculator. Check it out. The ROI is probably higher than you think!


We are asked this question a lot. The answer is 100% up to the employer and should be described in the employer’s written substance abuse policy.

For regulated employees (such as truck drivers with CDLs), the DOT regulations do not address hiring, termination, or other employment actions. These decisions are solely the employer’s, which may be based on company policy and/or any collective bargaining agreements.

If you need to know, ask the employer. Some will terminate or refuse to hire. Some might offer a second chance.

The drug-free workplace is an alphabet soup of acronyms. Following is a cheat sheet.

DHHS or HHS – Department of Health and Human Services

DHHS is the foremost agency of the US government that is responsible for providing health and human services.

The US DOT follows HHS guidelines, so when changes are rolled out, HHS is first, and DOT follows.

SAMHSA – Substance Abuse and Mental Health Services Administration

SAMSHA is a part of DHHS that deals with substance abuse and mental health issues and makes efforts to improve the behavioral health of America’s communities.

The agency provides accreditations to the laboratory performing urine testing.

If you read SAMHSA’s annual National Survey on Drug Use and Health, you can easily see the connection between substance abuse and mental health.

CAP – College of American Pathologists

The CAP provides accreditation to the medical labs that perform drug tests on hair, urine and oral fluid for workplaces or any other non-medical firm.

CLIA – Clinical Laboratory Improvement Amendments

CLIA regulates laboratory testing and makes it mandatory for medical laboratories to get certification from their state and the CMS (Center for Medicare and Medicaid Services) for carrying out diagnostic testing.

AACC – American Association of Clinical Chemists
AACC is a worldwide scientific and medical professional association committed to medical laboratory discipline and its application to healthcare.

MRO – Medical Review Officer

A medical review officer is a certified physician who is responsible for analyzing the drug test results generated by the clinical laboratory. The MRO is the gatekeeper for the drug testing process.

CCF – Custody and Control Form

The CCF procedures are used to track the handling and storage of each urine sample during the testing process to maintain its integrity. Also known as a COC (Chain of Custody) form or simply “chain.”

eCCF – Electronic Custody And Control Form

These are a more advanced form of CCF that allows paperless CCF procedures. Its popularity is growing.

Immunoassay Based Test

This is the primary screening test to detect the presence of drugs in the sample. Generally referred to as a “screen” or “screening test.”

GC/MS Gas Chromatography/Mass Spectrometry

Also referred to as “confirmation testing,” GC/MS testing is used if an Immunoassay test is non-negative.

If the primary test results positive for the presence of the drug. GC/MC is carried out to determine the type and amount of drug in the urine,

SVT – Specimen Validity Test

SVT is performed on a drug screen sample to determine substitution, adulteration, or dilution.

FMCSA – Federal Motor Carrier Safety Administration

FMCSA is a US DOT agency that regulates the truck and bus industry in the United States. This agency enforces safety regulations to minimize injuries, crashes, and deaths.

USCG – United States Coast Guard

It’s a unit of US Armed Forces that regulates maritime enforcement laws, maritime homeland security, search and rescue and ensures marine environment protection.

It also falls under the category of transportation, so generally falls in line with UD DOT guidelines for drug testing.

FAA – Federal Aviation Administration

A national authority that regulates all aspects of civil aviation including U.S. commercial space transportation, air navigation facilities and promotes transportation safety.

FTA – Federal Transit Administration

The Federal Transit Administration is a DOT agency in the United States that helps local public transportation systems technically and financially to develop and maintain the transit systems.

FRA – Federal Railroad Administration

An agency within the US Department of Transportation that administers railway safety regulations and creates funding and implements new rail technologies.

NRC -Nuclear Regulatory Commission

The Nuclear Regulatory Commission is an independent agency of the United States government tasked with protecting public health and safety related to nuclear energy.

PHMSAPipeline and Hazardous Materials Safety Administration

The DOT agency that is responsible for developing and imposing principles for safe and eco-friendly pipeline transportation.

DFW – Drug-Free Workplace

The Drug-Free Workplace Program is a comprehensive program to help the employees in treatment and recovery from illicit drug use disorders. Many non-regulated employees value the safety, productivity and cultural advantages of maintaining a drug-free workplace.

SAP – Substance Abuse Professional

A SAP is a person authorized for examining the employee who has violated a DOT safety regulation program and recommend the testing and treatment procedures.

RTD – Return- To- Duty

The process an employee must go through after failing or refusing a drug or alcohol test. For DOT-regulated employees, this is a very specific process.

Marijuana in the workplace is a hot topic. Despite still being illegal federally, the trend of legalization of recreational marijuana is growing.

As of January of 2019, 33 states across the USA have some sort of decriminalization of pot, whether it’s medically or recreational.

As a business owner with a lot on the line, what things should be considered in regard to your employees, marijuana and your company?

Go through these 9 questions to get a better understanding of what your next steps should be.

Is your business in a state that has legal recreational marijuana?

You’ve invested a lot of time, resources and money into your business. Do you want your employees coming in to work high on pot? Just as alcohol is legal, you don’t want your employees to come into work impaired. It’s a liability.

Even though you might say, “what they do at home is their business,” you should know there are no marijuana drug tests that can prove current impairment. And, impairment has been demonstrated to last long after the high is gone.

Be sure to work with a professional drug testing partner like InOut Labs to know what can and can’t be done when it comes to drug testing employees and marijuana.

Another option is to continue testing for other illegal drugs besides marijuana.

Do you do business in states that have medical marijuana laws?

In time, there will be some sort of law in most US states regarding medical marijuana. Just because an employee of yours has a medical marijuana card, does it mean that he can get high at your place of business?

It’s absolutely crucial that you and the leaders of your company decide what rules and policies you will invoke in regards to medical marijuana.

There are a number ways of ingesting medical marijuana that does not cause a “high” feeling. Can these folks work in your factory? Do you want them talking to customers?

These sorts of questions need to be answered ASAP as medical marijuana is here to stay and more and more people are using it. Get expert advice on the medical marijuana laws in your state so you can make informed decisions.

Will you employ people who are medical marijuana cardholders? What about current employees who have a medical marijuana card?

This question needs careful consideration. Depending on which state(s) you do business in, there could be some very specific laws with regard to employees’ rights when it comes to medically prescribed marijuana.

It might be determined that the only way a person can work is when they use marijuana medically and therefore they would fall within the guidelines of the  Americans with Disabilities Act.

This is why policies must be reviewed and decisions made based on which State law you business is in.

Do you have a company policy that states you will test employees for marijuana?

Now is the time to have a long, frank conversation with the leaders in your company. It’s time to decide the right course of action to take with regard to a drug testing policy. Will it include marijuana?

If it does include marijuana, what consequences will be applied if the employee tests positive? What if they are a medical marijuana card holder and you are in a state where it’s legal?

It is very important to discuss your policies with your attorney about the state law and provisions that will keep your company out of trouble.

Do you do business in a state where there are limitations on holding employees or candidates accountable for positive marijuana drug tests?

Depending on what the laws are in your state, you might find yourself prohibited from firing an employee who tested positive for marijuana if the state has a medical marijuana law.

And what if the state law says you cannot discriminate when it comes to making hiring decisions when an employee or new hire fails a drug test for marijuana, and that employee, whom you know to be a marijuana user, harms another employee in a workplace accident?

It’s important to know what the law is and also to pay attention to court rulings.

Does your business receive a discount on workers compensation due to participating in a State Drug-Free Workplace program?

In the 1990s, some states started drug-free workplace programs where companies could receive discounts on their workers’ compensation insurance premiums if companies would uphold and have clear policies on being a drug-free workplace.

There are approximately 13 states across the nation that have statewide drug-free workplace programs.

This is another reason where it’s imperative to talk to legal counsel in your state to draft up clear policies on drug testing so you can a) protect your company and b) continue to stay in the Drug-Free program.

Are you regulated by the United States Department of Transportation (DOT) and therefore required to test employees for marijuana?

If the employee is required by the United States Department of Transportation to participate in drug testing programs, they have no say in whether they are tested for marijuana. DOT guidelines are strict with no flexibility.  

This includes bus drivers, truck drivers, airline pilots, subway workers and safety-sensitive workers in other modes of public transportation.

Do you work on contracts (federal or state) that require you to implement a drug-free workplace?

An often overlooked law which states that federal contractors must agree that they will provide a drug-free workplace as a condition to receiving the federal or state contract can lead to loss of a contract.

Employers with these types of contracts or grants must honor these conditions in order to retain the contract.

This means administering (at a minimum) a five panel drug test which includes Marijuana, Cocaine metabolites, PCP, Opioids for all staff.

How do you know if an employee has used marijuana in the workplace? And does it matter to you if they smoke pot on their own time?

Would you feel safe if you were flying cross country with a pilot that smoked a joint before he came into work? How about a surgeon who is a heavy pot smoker on the weekends? Do you feel comfortable going under the knife with him behind the scalpel?
The same applies to employees that work for you. Perhaps there are staff that don’t feel safe working with someone who just smoked before coming to work.

What message is the leadership setting when it comes to marijuana use and your company? It’s about implementing policies.

Be sure to speak to a employment attorney when deciding on whether you’ll have a policy that doesn’t prohibit the use of a controlled substance.

So, how do we know if an employee used marijuana before work or not?

Well, really we can’t. Currently, there are no drug testing methods that show how recently they smoked. If they test positive for marijuana, this could mean they smoked a few hours ago or even 30 days ago.

Marijuana in the workplace is a topic that is not going away any time soon. Especially with more and more states legalizing it.

Regardless of whether it’s legal or not, it doesn’t change the effects it can have on health, family relationships and safety in the workplace.

Employers, it’s time to make decisions about marijuana in the workplace. If you need help, contact InOut Labs at 847-657-7900 or www.inoutlabs.com

As many know, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the confidentiality of “medical records” of a “patient.” Most of us are grateful for HIPAA privacy rules, as we really don’t see our personal health issues as anyone’s business but our own.

But ….

HIPAA privacy laws do not apply to federal drug testing. To begin with, there is no “patient.” There is only a “donor,” or the individual who provides the specimen for testing.

Also, there is no “medical” examination. A drug test is not conducted for any medical reasons, for diagnosis or for treatment. It is a forensic safety exam to determine if an employee or prospective employee meets the employer’s work qualifications. In fact it’s not even considered a “fitness for duty” exam.

From DOT MRO Guidance

Remember, as an MRO, you do not need an employee’s written authorization to disclose drug testing information when:

  • discussing alternative medical explanations with prescribing physicians and issuing pharmacists,
  • reporting results to employers,
  • conferring with Substance Abuse Professionals (SAPs) and evaluating physicians; or
  • reporting other medical information to certain third parties (see § 40.327).

It is important to remember the Health Insurance Portability Accountability Act (HIPAA) may apply to pharmacies and prescribing physicians. If they insist on the employee providing a release, advise the employee to act immediately on that request.


The Americans with Disabilities Act states: “(1) In general.–For purposes of this title, a test to determine the illegal use of drugs shall not be considered a medical examination.”

US Department of Transportation

The DOT has published its position on this subject stating that HIPAA does not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by 49 CFR Part 40 and other DOT agencies drug and alcohol testing rules.

However …

If a positive drug test reveals an underlying health issue, then that heath issue may be protected by the ADA. Also, even though addiction is protected under the ADA, being under the influence of drugs or alcohol at work is not.

When these issues arise, you want to make sure your written drug-free workplace policy is up to date, and you’ll want to consult your HR professional.

For further queries and consultation please get in touch with us.

Methamphetamine is available in two forms: “d” and “l.” They have the same chemical formula and similar chemical properties and a drug test cannot tell the difference. MOST positive drug test results for meth are indeed positive for methamphetamine. Most donors who have a positive test result for meth will deny it, even if they use it. However, it is possible (rare, but possible) to have a false positive for meth, and labs, MROs and employers need to make sure before determining a meth positive.

Positive for Meth – What You Can Do

If a donor truly believes it’s a false positive, s/he can ask for a d/l isomer test. Some labs and MROs do the d/l isomer test automatically.

The “d” form is a prescription stimulant and appetite suppressant. The “l” form is available over-the-counter as the active ingredient of a specific Vick’s inhaler and is a metabolite of certain prescription medications. Both “d” and “l” forms test positive by both immunoassay and most confirmation assays.

D/L Isomer tests are not free. Our clients are charged a $99 fee for each D/L isomer test conducted.

If the donor were to claim that they had a methamphetamine positive because they used a Vicks inhaler, then the MRO would order a d/l isomer separation to determine if the drug present in the specimen is at least 80% l-methamphetamine. If the specimen contains more than 20% d-methamphetamine, then the donor is to be considered positive for illicit methamphetamine use.

It should be noted that this specific Vicks inhaler is rare and we have never had a meth positive overturned as the result of a d/l isomer test.

The l-form of methamphetamine is available OTC in the Vicks and other generic nasal inhalers and the d/l isomer test can tell the difference.

D-Methamphetamine abuse is widespread. Meth labs appear nationwide in primarily rural settings, though we have had plenty of positives in urban and suburban areas.

We receive calls and messages regularly from meth users looking for an excuse for a positive meth test. Please do not be one of those people. If you use methamphetamine, get help.

Meth (also called meth, crystal, chalk, and ice) may be administered orally in capsules or tablets, snorted, or smoked. Methamphetamine is an extremely addictive stimulant drug that is chemically similar to amphetamine.

Further Reading about Drug Tests:

It sounds a bit cryptic, but it’s actually very simple.

When a drug test is positive, meaning a drug of abuse was detected, the result goes to our Medical Review Officer. The MRO is a doctor with special training. Part of the MRO’s job is to validate any positive drug tests.

Generally this means contacting the donor to ask for explanation. If the donor can provide a valid prescription (which the MRO verifies) or other reason a drug test result may be positive, then the MRO may report a negative result.

If the MRO is not able to contact the donor within a specific amount of time, then the result is reported as a Non-Contact Positive.

Some possible reasons the MRO may not be able to contact the donor include poor legibility on the Custody and Control Form. That is, if a paper CCF was used for collection and the MRO cannot accurately read the donor’s phone number, then the donor cannot be contacted. Or the donor does not answer the phone and the voice mail cannot record a message. Or the donor does not check voice mail.

Or, as you can imagine, the donor knows she failed the test and avoids the call.

In any case, a result must be reported, and if no donor contact is made, then it’s reported as a Non-Contact Positive.

For more info on the critical role of the MRO, read this post.

General Questions

Yes, as long as the ID has been expired for one year or less.

DOT offers guidance in the preamble to the oral fluid final rule, 88 Federal Register 27605 (May 2, 2023):

“[T]he issue of employees using expired forms of identification at the collection site has been an ongoing problem. As we have advised for several years, we want collectors to know it is acceptable to accept an expired photo ID issued by a Federal, State, or local government agency, if the ID has not been expired for more than 1 year.  This information is contained in the current Office of Drug and Alcohol (ODAPC) Urine Collection Guidelines and will be added to the ODAPC Oral Fluid Specimen Collection Guidelines.”

[Credit: NDASA Member Minute 9/20/23]

When an employee submits to a urine drug test, the following specific steps must be followed by the collector. These are for Federal collections, but are generally followed for non-DOT tests a well. A donor who does not cooperate with the process may be considered to have refused to test. Here are the instructions for completing the federal drug testing custody and control form. Download PDF here: DOT-Collection-Instructions

When making entries on a paper CCF, use black or blue ink pen and press firmly

  • Collector marks the Urine box above STEP 2.
  • Collector ensures that the name and address of the HHS-certified Instrumented Initial TestFacility (IITF) or HHS-certified laboratory are on the top of the Federal CCF.
  • Collector verifies that the Specimen Identification (I.D.) number on the top of the FederalCCF matches the Specimen I.D. number on the labels/seals.STEP 1:
  • Collector ensures that the required information is in STEP 1. Collector enters a remark in STEP 2 if Donor refuses to provide his/her SSN or Employee I.D. number.
  • Collector notes any unusual behavior or appearance of Donor in the remarks line in STEP 2. If the Donor’s conduct at any time during the collection process clearly indicates an attempt to tamper with the specimen, Collector notes the conduct in the remarks line in STEP 2 and takes action as required.STEP 2:
    • Collector checks the Split or Single specimen collection box. If the collection is observed, Collector checks the Observed box and enters a remark in STEP 2.
    • Collector gives collection container to Donor and instructs Donor to provide a specimen.
    • Collector checks specimen temperature within 4 minutes after receiving the specimen fromDonor, and marks the appropriate temperature box in STEP 2. If the temperature is outsidethe acceptable range, Collector enters a remark in STEP 2 and takes action as required.
    • Collector inspects the specimen and notes any unusual findings in the remarks line in STEP 2 and takes action as required. Any specimen with unusual physical characteristics (e.g.,unusual color, presence of foreign objects or material, unusual odor) cannot be sent to anIITF and must be sent to an HHS-certified laboratory for testing as required.
    • Collector determines the volume of specimen in the collection container. If the volume isacceptable, Collector proceeds with the collection. If the volume is less than required by thefederal agency, Collector takes action as required, and enters remarks in STEP 2.
    • If no urine specimen is collected by the end of the collection process, Collector checks theNone Provided box, enters a remark in STEP 2, discards Copy 1, and distributes remaining copies as required.STEP 3:
    • Donor watches Collector pour the specimen from the collection container into the specimen bottle(s), place the cap(s) on the specimen bottle(s), and affix the label(s)/seal(s) on the specimen bottle(s).
    • Collector dates the specimen bottle label(s)/seal(s) after placement on the specimen bottle(s).
    • Donor initials the specimen bottle label(s)/seal(s) after placement on the specimen bottle(s).
    • Collector instructs the Donor to read and complete the certification statement in STEP 5 on Copy 2 (signature, printed name, date, phone numbers, and date of birth). If Donor refuses

      to sign the certification statement, Collector enters a remark in STEP 2 on Copy 1. Electronic CCF: if the donor refuses to sign electronically but is willing to sign a paper CCF, Collector prints ECCF Copies 1-5. Donor signs in STEP 5 of Copies 2-5 using a wet-ink signature and Collector signs in STEP 4 of Copies 1-5 using a wet-ink signature.

      STEP 4:

      • Collector completes Collector chain of custody in STEP 4 on Copy 1 (signature, printed name, date, time of collection, and name of delivery service) and places the sealed specimen bottle(s) in a leak-proof plastic bag.
      • Paper CCF: Collector places Copy 1 in separate compartment of the leak-proof plastic bag. Electronic CCF: Collector places printed copy of Copy 1 in separate compartment of the leak-proof plastic bag and/or places package label (with Specimen I.D. number, test facility name and contact information, and collection site name and contact information) on the outside of the bag.
      • Collector seals the bag, prepares the specimen package for shipment, and distributes the remaining CCF copies as required.

      If you have checked the instructions for completing the federal drug testing custody and control form, now you can have a look at an example of a completed custody and control form.

If you are wondering what do employees need to take with them to the testing center, you should know that they will always need a government-issued photo ID, such as a driver’s license. If for some reason the employee or candidate does not take an acceptable photo ID, the employer’s Designated Employer Representative (DER) may identify him or her over the telephone.

The donor will also need to have test which may consist of a Custody and Control Form (CCF), an electronic test authorization form, or an Authorization Form provided by InOut Labs.

A Custody and Control Form, often called a CCF, is what documents the chain of custody of a specimen. In its paper form, it is a five-part form. Page one is the Lab Copy. Page 2 is for the MRO. Page 3 is the Employer Copy. Page 4 is for the Collector and the last page is the Donor Copy.

Many CCFs are electronic (eCCF), though a paper copy still accompanies the specimen to the lab.

At first glance, Federal and Non-Federal CCFs look similar. A Federal Form — the type of form used for all DOT testing – says “Federal Drug Testing Custody and Control Form” at the top. A Non-Federal Form says “Forensic Custody and Control Form.” The name of the laboratory (Quest Diagnostics, LabCorp, Alere, CRL, MedTox, etc.) is found in the upper right corner.

ATFs are not account-specific like drug testing CCFs. Collection sites keep Alcohol Testing Forms (ATFs) on hand, and employees do not need to bring an ATF to a collection site. Employees should, however, bring Custody and Control Forms (CCFs) to collection sites for drug tests.

It generally takes InOut Labs one to two business days to process your application and provide you with proof of membership. You will receive your company’s Compliance Manual and testing supplies in about a week.
The Compliance Manual contains forms and step-by-step instructions on how to set up and manage your company’s drug and alcohol program.

If your employees are required to be tested under DOT regulations, then no notice period is required. Your company is, however, required to post certain required information and provide your employees with Employee Education handouts regarding the federal regulations and your company’s drug and alcohol testing program. The Compliance Manual provided with membership contains all the necessary posters, documents, handouts, forms and training materials required by the DOT to be posted and provided to your safety-sensitive employees.
Non-DOT employers are generally advised to provide at least 30 or 60 days notice. You will want to consult your HR professional or employment attorney.

We encourage you to call InOut Labs as often as you need to. Although the Compliance Manual and accompanying materials are very easy to follow, there is a lot to know, and unusual circumstances arise. InOut Labs’ staff is knowledgeable about the federal regulations and are here to help.

Post-Accident Drug Testing

  • Any fatality (except for the driver).
  • Citation for moving violation and disabling damage to any involved vehicle.
  • Citation for moving violation and medical treatment away from the scene.

Rule of thumb: If there is no fatality: No ticket, no test.

Read more.

If your policy states that you require Post-Accident drug and alcohol testing for any accident or incident, you may conduct the testing using a Non-Federal custody and control form and a Non-Federal alcohol testing form.

Under FMCSA rules, in an accident where there is disabling damage to a motor vehicle or bodily injury with immediate medical treatment away from the scene, the driver is subject to Post-Accident testing only if he receives a citation. Post-Accident testing must always be conducted in the event of a human fatality. Employers with a general drug and alcohol policy that requires post-incident testing may conduct a non-Federal test.

Post-Accident tests must be conducted as soon as practicable: Alcohol tests within 2 hours (not more than 8), and drug tests within 32 hours. If an alcohol test is not administered within two hours, the employer must document the reasons why a test was not promptly conducted. The employer must also continue to attempt to administer a Post-Accident alcohol test for up to eight hours and the Post-Accident controlled substances test for up to 32 hours after a qualifying accident. Employers must also document the failure to conduct a Post-Accident test on their MIS report.

No. Even if the accident meets the FMCSA definition of an accident requiring testing, it is too late. The regulations state that drivers who have been in an accident requiring Post-Accident testing must be tested for controlled substance and alcohol use as soon as practicable following an incident. If an alcohol test is not administered within 8 hours following the accident, the employer shall cease all attempts to administer a test. Similarly, a substance abuse test must be administered within 32 hours of an accident. You should document all of this.

DOT Compliance

DOT authorizes any individual who has received training specified in 49 CFR § 40.33 to act as a urine collector, and in § 40.35 to act as an oral fluid collector, except in the following situations:

  1. The immediate supervisor of a particular employee must not act as the collector when that employee is tested
  2. An employee who is in a safety-sensitive position and is subject to the DOT drug testing rules should not be a collector (or an observer or monitor) for co-workers who are in the same testing pool or who work together with that employee on a daily basis
  3. The employee must not be the collector of his or her own specimen
  4. A collector must not be related to the employee being tested (e.g., spouse, ex-spouse, relative) or a close personal friend

Yes, as long as the ID has been expired for one year or less.

DOT offers guidance in the preamble to the oral fluid final rule, 88 Federal Register 27605 (May 2, 2023):

“[T]he issue of employees using expired forms of identification at the collection site has been an ongoing problem. As we have advised for several years, we want collectors to know it is acceptable to accept an expired photo ID issued by a Federal, State, or local government agency, if the ID has not been expired for more than 1 year.  This information is contained in the current Office of Drug and Alcohol (ODAPC) Urine Collection Guidelines and will be added to the ODAPC Oral Fluid Specimen Collection Guidelines.”

[Credit: NDASA Member Minute 9/20/23]

§383.3 – Applicability  

Guidance Q&A

Question 2: Do mechanics, shop help, and other occasional drivers need a CDL?

Guidance: Yes, if the vehicle is a CMV and is operated or test-driven on a public highway.

Read more

Are Occasional Drivers Required to Drug Test?

If an employee performs safety-sensitive functions that would subject him to the DOT testing programs of more than one DOT agency (e.g. FMCSA and PHMSA), the employee shall be subject to random alcohol and/or controlled substances testing at the annual percentage rate established for the calendar year by  the DOT agency regulating more than 50% of  the employee’s safety-sensitive work. See 49 CFR §382.305(n) and (o). This situation may occur where an employee performs both CDL functions and pipeline maintenance functions for a DOT-regulated employer.

The short answer to the question “are occasional drivers required to drug test” is Yes.

All drivers that operate a commercial motor vehicle, as defined in 49 CFR §382.107, which requires a driver holding a commercial driver’s license, are subject to the Drug and Alcohol testing requirements in 49 CFR Parts 40 and 382. (See 49 CFR §383.3). This includes, but is not limited to: full time, regularly-employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors. See federal register notice on leased drivers.


See this:

Occasional Drivers: My company purchased a large truck that is over 26,001 lbs. gross vehicle weight rating (GVWR). We do not currently employ any commercial driver’s license (CDL) drivers. The vehicle has only been driven a few times by a family friend, who is not an employee and has driven the vehicle as a favor absent any compensation. Does our company need a DOT drug and alcohol testing program to test this occasional driver?


In accordance with §382.103, your company must implement a DOT drug and alcohol program for all drivers operating a commercial motor vehicle (CMV) that requires the driver to possess a commercial driver’s license (CDL).  Section §382.107 defines “Driver” as “any person who operates a commercial motor vehicle.”  This includes, but is not limited to: full time, regularly-employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.

Historically, the DOT’s regulation required the MRO to report your medication use/medical information to a third party (e.g. your employer, health care provider responsible for your medical qualifications, etc.), if the MRO determines in his/her reasonable medical judgement that you may be medically unqualified according to DOT Agency regulations, or if your continued performance is likely to pose a significant safety risk. The MRO may report this information even if the MRO verifies your drug test result as “negative.”

As of January 1, 2018, prior to the MRO report your medication use and information to a third party you will have up to five days to have your prescribing physician contact the MRO. You are responsible for facilitating the contact between the MRO and your prescribing physician. Your prescribing physician should be willing to state to the MRO that you can safely perform your safety­sensitive functions while taking the medication(s), or consider changing your medication to one that does not make you medically unqualified or does not pose a significant safety risk.

Summarized from 49CFR Part 40) and adapted to non-DOT collections. We model DOT protocols for all collections. The collector may terminate the process at any point if the donor does not cooperate.

No one is forcing you to remain at the collection site. If you leave after beginning the process, it is reported as a Refusal to Test. Under DOT regulations, a Refusal is treated the same as a positive test. Most non-DOT employers also consider a Refusal as a failed test.

Examples of a Refusal to Test

  • Fail to appear at a urine collection site when directed to report
  • Fail to remain at the collection site
  • Fail to provide a urine specimen
  • Fail to permit a monitored or observed urine collection
  • Fail to cooperate with any part of the urine collection process
  • Possess or wear a prosthetic or other device that could be used to interfere with the collection process
  • Admit to the collector to having adulterated or substituted the specimen
  • Fail to undergo a medical examination or evaluation as the employer has directed as part of the insufficient breath procedures
    • The above are

Collection Site Refusals.More on Refusals To Test


Summarized from 49CFR Part 40) and adapted to non-DOT collections. We model DOT protocols for all collections.  The collector may terminate the process at any point if the donor does not cooperate.

Urine drug tests require either 30 or 45ml of specimen. If a donor is not able to produce sufficient specimen, the shy bladder process is begun.

A donor is permitted up to 3 hours and up to 40 ounces of water. Most are able to produce a specimen in 20-30 minutes.  Water is provided by staff and logged. All attempts to provide a specimen are also logged. Donors are not required to drink the water.

After 3 hours, if the donor does not provide a specimen, the donor is dismissed and we report the event to the MRO and to the employer. For DOT collections, the MRO will request the donor to provide a medical explanation for the shy bladder. If none is provided, it becomes a Refusal to Test. Non-DOT employers treat it according to company policy.

Summarized from 49CFR Part 40) and adapted to non-DOT collections. We model DOT protocols for all collections.  The collector may terminate the process at any point if the donor does not cooperate.

Temperature Out of Range Drug Test

Urine specimens are expected to be between 90 and 100 degrees Fahrenheit.

If below 90 or above 100, the collector is required to collect a second specimen.

For Federal (DOT) collections, the re-collection is under direct observation, meaning a same-sex observer goes in to the restroom with the donor, and both specimens are sent to the lab.

Non-DOT collections generally are not observed and often only the second specimen is sent to the lab. The employer is informed that the first specimen had temperature out of range drug test.

If the donor is not able to produce a second specimen immediately, then the Shy Bladder process is begun.

It is not uncommon for people to try to defeat a drug test, either by substitution or adulteration. Substitution simply means they smuggle in someone else’s urine, or synthetic urine. Adulteration means they add an adulterant to their specimen which can make it invalid. To prevent this from occurring, sometimes an observer accompanies the individual into the restroom. Under DOT guidelines, Direct Observation for drug test is required in certain circumstances, and how it is performed is also very specific.

The following is from here: https://www.transportation.gov/odapc/dot-direct-observation-procedures

DOT’s Direct Observation Procedures1. DOT’s 49 CFR Part 40 directly observed collections are authorized and required only when:

  • The employee attempts to tamper with his or her specimen at the collection site.
  • The specimen temperature is outside the acceptable range;
  • The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
  • The collector finds an item in the employee’s pockets or wallet which appears to be brought into the site to contaminate a specimen; or the collector notes conduct suggesting tampering.
  • The Medical Review Officer (MRO) orders the direct observation because:
  • The employee has no legitimate medical reason for certain atypical laboratory results; or
  • The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).
  • The test is a Follow-Up test or a Return-to-Duty test.

2. The observer must be the same gender as the employee.

3. If the collector is not the observer, the collector must instruct the observer about the procedures for checking the employee for prosthetic or other devices designed to carry “clean” urine and urine substitutes AND for watching the employee urinate into the collection container.

  • The observer requests the employee to raise his or her shirt, blouse or dress / skirt, as appropriate, above the waist, just above the navel; and lower clothing and underpants to mid-thigh and show the observer, by turning around, that the employee does not have such a device.
  • If The Employee Has A Device: The observer immediately notifies the collector; the collector stops the collection; and the collector thoroughly documents the circumstances surrounding the event in the remarks section of CCF. The collector notifies the DER. This is a refusal to test.
  • If The Employee Does Not Have A Device: The employee is permitted to return clothing to its proper position for the observed collection. The observer must watch the urine go from the employee’s body into the collection container. The observer must watch as the employee takes the specimen to the collector. The collector then completes the collection process.

4. Failure of the employee to permit any part of the direct observation drug test procedure is a refusal to test.

Q3. Random Testing Selection Period:  A driver that was selected in the first quarter but was tested on April 4. Is the motor carrier in violation for not testing the driver in the selection period they were selected, since the first quarter selection runs from January 1 to March 31? Also, does this random test count towards the first quarter or second quarter?

A3. Yes, the motor carrier is in violation because the driver was not tested in the selection period he/she was selected, as is required by 49 CFR 382.305(i)(3).  However, the test will count towards the motor carrier meeting their minimum random testing requirements of 25% for DOT random controlled substance testing and 10% for DOT random alcohol testing. Please see 49 CFR 382.305(b)(1)(2).

Question 1: If a driver refuses to sign a statement certifying that he or she has received a copy of the educational materials required in §382.601 from their employer, will the employee be in violation of §382.601? May the driver’s supervisor sign the certificate of receipt indicating that the employee refused to sign?

Guidance: Wondering whether you need a signed receipt from each driver? Well, in just a few words, you should know that the employer is responsible for ensuring that each driver signs a statement certifying that he or she has received a copy of the materials required in §382.601. The employer is required to maintain the original of the signed certificate and may provide a copy to the driver. The employer would be in violation if it uses a driver, who refuses to comply with §382.601, to perform any safety sensitive function, because §382.601 is a requirement placed on the employer. The employee would not be in violation if he or she drove without signing for the receipt of the policy. It is not permissible for the driver’s supervisor to sign the certificate of receipt; however, it is advisable for the employer to note the attempt, the refusal, and the consequences of such action. Also, please note that the signing of the policy by the employee is in no way an acknowledgment that the policy itself complies with the regulations.


Need a DOT-compliant policy that includes a receipt?


What are the drug testing requirements for DOT-regulated employees who were furloughed or laid- off during the pandemic?

Without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions. In many ways, you treat it the same way seasonal employers do.

Federal Motor Carrier Safety Administration (FMCSA) Guidance (link)

  • If driver considered to be an employee of the company during an extended (layoff) period, and included in the random testing program during this period, a pre-employment test would not be required
  • If driver not considered an employee of the company at any point during the layoff period, or was not covered by a program, or was not covered for more than 30 days, then a pre-employment test would be required.

Federal Aviation Administration (FAA) Guidance (link)

  • An employer is not required to conduct a pre-employment drug test and have a negative result prior to returning an employee to work after an 
extended absence or furlough.
An employer may conduct a pre-employment test when the following criteria are met:
The individual previously performed a safety-sensitive function for you and is not being rehired or transferred into a safety-sensitive function;
    • The employee was removed from the random testing pool for reasons other than a verified positive test result on an FAA-mandated drug test 
or a refusal to submit to such testing; and
    • The individual will be returning to the performance of a safety-sensitive function
  • If an employer’s policy is to remove employees from the random testing pool while on an extended absence or furlough, we believe it is a best practice to conduct a pre-employment test and have a negative result if the absence or furlough lasted longer than 60 days.

Now a new wrinkle. 

The FMCSA issued a waiver on June 6, 2020 entitled “Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency – To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382 from Certain Pre-Employment Testing Requirements.” Read it here.

The gist of it is furloughed drivers do not need a pre-employment drug test when re-hired under certain conditions. The conditions are complex, so if you want to take advantage of this rare exception from the FMCSA, you’ll want to make sure you understand it. Our clients were advised not to remove drivers from the pool if they were expected to return before the end of the quarter, so this does not really apply to them.

For employers that did remove drivers from the random testing program, we would advise that they receive a pre-employment drug test regardless of what the waiver says. Many who were out of work recently got into some bad habits.  You would also need to conduct a pre-employment Clearinghouse query. Need help with the Clearinghouse?


There are no rules or regulations stating that you cannot run your own DOT drug and alcohol testing program. However, there are so many regulatory requirements — such as a policy, a certified MRO, Reasonable-Suspicion training for supervisors, Post-Accident training, etc. — that it is often difficult for a small company to manage its own program. An effective C/TPA will also keep you informed of regulation changes and provide required reports.

Also, if the owner is also a driver, you are required to select a C/TPA in the FMCSA Clearinghouse.

If you are wondering if your personal doctor can also be your MRO, the short answer is “possibly, but probably not”. The DOT regulations require MROs to be certified. Unless your doctor is a certified MRO, he or she may not act as a Medical Review Officer.

As part of the Return To Duty Process, the Substance Abuse Professional (SAP) requires provides Follow-Up testing plan which may last up to 5 years. At a minimum, there must be at least six tests within the first 12 months of the employee’s return to safety-sensitive functions.

All DOT Follow Up tests are directly observed.

Failure of a non-federal drug test is not the same as failing a federal drug test. It also does not constitute Actual Knowledge.

But a positive non-DOT drug test does make the driver medically unqualified to perform safety sensitive duties. Under 49 CFR Part 391.41(b)(12), the driver is to be removed from driving duties and is medically unqualified for the duration of the prohibited drug use.

Before he or she can resume performing safety-sensitive work (i.e. drive), the driver must be examined by a Certified Medical Examiner, who may determine that the driver needs to see a Substance Abuse Professional (SAP), complete a drug rehab program and/or have a negative drug test result.

Once the medical examiner has determined that the driver is drug free, the driver may return to safety-sensitive duties. Since this is a non-Federal drug test, the requirements of 49 CFR Parts 382 and 40 and the Return To Duty process do not apply.

DOT regulations do not address who is responsible for paying for SAP services. The employers substance abuse policy may (should)( provide guidance for determining who pays. Many employers pass the costs associated with the Return-to-Duty process to the employee. And some employers choose to cover these costs.

You must be enrolled in a DOT FMCSA drug and alcohol testing consortium and must have a negative pre-employment drug test.

Requirements for supervisor training are for companies where the owner is not the sole driver. Owner Operators are required to register in the FMCSA Clearinghouse. AND to select a C/TPA.

If you fail or refuse a DOT drug or alcohol test, you must complete the Return to Duty Process with the help of a third party. When this happens with an InOut Labs client, we offer them a RTD management package.

Yes indeed. The drug and alcohol testing regulations address and apply to motor carriers of all sizes equally, whether there is only one driver or many drivers. [49 CFR Part 382].

The regulations require that every driver receive a policy meeting specific requirements. The regulations also require that employers obtain a receipt signed by the driver to verify that he has received the drug and alcohol program requirements. These rules apply to all employers, even owner-operators. [49 CFR Part 382.601].

If the driver has been selected for a Random test, and you do not want to wait for him or her to return to your area so that he or she can get a CCF, we can still get the testing completed. For most tests, you can order the test electronically via drugtest.inoutlabs.com.

See How to Order a Drug Test for more detailed information.

Or let us know and we can help.

For FMCSA, remember that your driver must complete the Random selection within the current testing period (quarter).

Is it illegal to change anything on a CCF?

No. In fact, 49 CFR Part 40.45 specifically permits altering a CCF. It is done frequently when the proper form is not available.

The non-federally regulated safety-sensitive employees can be in a drug testing program but not the same random testing pool as your regulated employees. And they must be tested using different testing CCFs and test panels. A non-DOT drug testing program is run substantially the same, but there are important differences.

What is a DER? What are a DER’s responsibilities?

(TL;DR – DER Training Course)

The term DER comes from the government. The US Department of Transportation (49 CFR Part 40) defines Designated Employer Representative as follows:

Designated employer representative (DER). An employee authorized by the employer to take immediate action(s) to remove employees from safety‐sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.

The DER’s Job Description

The focus here in on DOT-regulated employers, but 97.2% of it (plus or minus) applies to all employers who drug test.

If you are a DER, your job is to:

  1. Serve as the key point of contact (for employees, MRO and C/TPA) for the employer’s drug and alcohol testing program.
  2. Ensure written substance policy is provided to all employees (with signed acknowledgement).
  3. Ensure no employee performs safety-sensitive work until a negative drug test result is received. Coordinate with HR as needed.
  4. Receive drug and alcohol test results. Confidentiality is critical. This is why you are “Designated.”
  5. Notify interested parties (managers or donor him/herself) when there is positive test result. This includes donors who fail a pre-employment drug test and are not hired.
  6. Ensure employee with a positive test result (or other violation) is immediately removed from safety-sensitive work.
  7. Ensure that a donor with a violation is provided a list of Substance Abuse Professional (SAP) referrals (DOT), or whatever is required in company policy. This includes donors who fail a pre-employment drug test and are not hired. The RTD process is mandatory.

These are the minimums – required by Part 40.

DERs are also often involved in the following:

  1. Assist with policy development.
  2. Assist with job descriptions for safety-sensitive positions across the organization.
  3. Develop discipline policies (consequences) for policy violators.
  4. Ensure all random testing lists are updated prior to random selections.
  5. Ensure that randomly selected employees report immediately for a test. This is the “go now” requirement in the DOT regulations.
  6. Ensure all random testing requirements are met (or exceeded).
  7. Distribute educational and awareness material to employees (DOT requirement).
  8. Ensure all supervisors complete required Supervisor Training (Reasonable Suspicion).
  9. Ensure applicable drug and alcohol test records have been requested from previous employers for all new hires covered by DOT regulations (Section 40.25)
  10. Ensure Pre-Employment Clearinghouse Queries are conducted for each no FMCSA employee.
  11. Ensure Annual Limited Queries are conducted for all existing FMCSA employees.
  12. Ensure Consent for Annual Limited Query is signed by every FMCSA employee. (Learn about out InOut Labs Clearinghouse support here.)
  13. Ensure any requests for previous drug and alcohol checks have been completed with the required 30 days (40.25 checks)
  14. Obtain any applicable SAP records from previous employers. You may be responsible for follow up testing.
  15. Ensure reasonable suspicion and post-accident drug and/or alcohol tests are conducted in accordance with federal regulations or company policy
  16. Ensure all return-to-duty and follow-up testing is accomplished when necessary (and according to direct observation procedures)

That’s a LOT, isn’t it? Would a web course make it easier? Sure it would.

Click here.


There are many reasons to put your drug-free workplace policy in writing. Here are some substance abuse policy considerations:

  • A written policy may be required by regulations, a state drug-free workplace program, by certain contracts or by your organization’s insurance carrier(s).
  • A written policy provides a record of your organization’s efforts to provide a safe, healthy and productive workplace.
  • A written policy provides documentation in the event the policy is challenged and may protect the employer from certain kinds of claims by employees.
  • A written policy is easier to explain to employees, supervisors, and others.

Substance Abuse Policy Considerations – Statement of Purpose

The statement of purpose should contain the organization’s goals and intentions for the substance policy. Describe the organization’s definition of substance abuse, and explain how and why the policy was developed. For example: Was it developed in meetings with employees representing different and diverse segments of the workforce? Or in cooperation with the union? Or in collaboration with legal counsel or insurance carrier? Or in response to concerns about recent legislation or reports of growing substance abuse in the news? Or, if applicable, “to meet the requirements of applicable laws and regulations”? Whatever the case, you should include a Statement of Purpose.

If any employees are covered by DOT regulations, you will need to address the specific requirements of each DOT agency. For example, there are 12 points that must be addressed for a policy to comply with FMCSA requirements. Read them in §382.601.

You may want to emphasize:

  • The policy’s immediate objectives, which may be to comply with drug-free workplace regulations (if applicable) and to prevent drug-related workplace accidents, illnesses, absenteeism, and performance problems.
  • The policy’s long-term goals of protecting and improving employee health, safety, and productivity, in part by addressing workplace alcohol and drug misuse.
  • The policy’s goals to protect the health and safety of all employees, customers and the public.
  • The policy’s intent to safeguard employer assets from theft and destruction, or protect trade secrets
  • The policy’s goal to maintain product quality and company integrity and reputation.
  • The employer’s requirement to comply with the Drug-Free Workplace Act of 1988 or any other applicable federal, state or local laws.


Items to consider (in no particular order):

  • Any drug-free workplace laws and regulations with which the organization comply
  • Organization’s definition of substance abuse?
  • What employee behaviors are expected?
  • What substances and behaviors are prohibited?
  • Who is covered by the policy?
  • If safety is a goal, do your job descriptions describe safety sensitive positions?
  • Non Regulated vs. Regulated employees? DOT, FMCSA, FRA, FTA, PHMSA, FAA
  • When does the policy apply? During work hours only. During organization-sponsored events after normal business hours?
  • Where does the policy apply? In the workplace while workers are on duty? Outside the workplace while they are on duty or on call? When are remote workers considered subject to policy requirements? How about when employees are in organization-owned vehicles while they are off duty?
  • Who is responsible for carrying out and enforcing the policy?
  • How is the policy communicated to employees?
  • Who is the DER? The Designated Employer Representative is the person designated by the employer to answer policy and program questions. The DER is the liaison with all drug and alcohol testing service agents (third party administrator, clinic, MRO and laboratory), employees and company. The DER is the main contact person and go​-to​person as it relates to the management of the employer’s ​drug testing program. Employees must be able to reach out to an authorized person should they have any questions regarding a company’s​program.
  • Medical Review Officer. Make sure your provider uses one.
  • Will the policy include testing for alcohol?
  • Do any union contracts have a say in what you can have in your policy?
  • Prohibited behavior: impairment, possession of drugs or alcohol in lockers, vehicles, etc.
  • Are employees required to notify supervisors of drug-related convictions?
  • Are employees required to inform employer if they are prescribed any medication that could adversely affect their ability to work safely?
  • Are employer searches of lockers, desks, company vehicles addressed?
  • Reasons for drug and alcohol testing: Pre-employment, Random, Post Accident, Suspicion, Periodic.
  • Consequences for violating the policy
  • Employee confidentiality
  • Drug panel: What drugs are being tested. Saying merely “illegal drugs” is not specific enough. Neither is “Five panel drug test.”
  • Specimen type(s) – Do you have the flexibility to test urine, hair and oral fluid specimens?
  • Second/Last Chance? Can an employee keep her job after a failed drug or alcohol test by going through EAP and a treatment program?
  • Do you have an EAP? If not, do you have a plan for referrals for treatment?
  • What qualifies as post accident? DOT defines for regulated employees. Non-regulated employers can define. Understand OSHA rules on post accident testing.
  • Refusal to test– define what it is and consequences.
  • Random testing?
  • What is your policy on negative dilute specimens? Is it different for pre-employment vs. random tests?
  • Policy acknowledgement form
  • If this is a new program, will you test all existing employees? Effective date of policy (30, 60 days?)

Need a policy? We can help.


The Return To Duty Process and the SAP

If a DOT-regulated employee fails or refuses a drug or alcohol test, s/he must complete the Return-To-Duty (RTD) process in order to return to safety-sensitive work. Many employers with non-regulated employees follow a similar procedure, but under DOT it’s non-negotiable.

The main question we get is whether the employee can keep his job or be eligible to work again.

Yes, s/he can be eligible to work again. Keeping the job is up to each employer. This is one reason employers must have a well-written substance abuse policy.

A complete guide to return to duty process:

FMCSA Infographic (PDF)

When a regulated employee fails (or refuses) a test, the employer must notify the employee and refer him to a SAP. At InOut Labs, we help our employers with this process.

Here’s what happens next:

1- Face to face initial evaluation-The Substance Abuse professional (SAP) conducts a face-to-face interview with the employee. The SAP tries to understand the actual background of the employee to determine whether he has a habitual problem, or perhaps just made an error in judgment.

2- Substance abuse program- The SAP prescribes a treatment program. The length of the treatment depends on the employee and the SAP’s evaluation.

3- Second evaluation – After successful completion of the substance abuse program a follow-up evaluation is done with the same SAP. Depending on the SAP’s assessment of the employee’s ability to remain drug or alcohol-free, the SAP may recommend the employee be eligible to return to duty. Before returning to duty, a successful Return-to-Duty drug (and often alcohol) test is required. The RTD drug test is directly observed, meaning the drug test collector goes into the restroom with the donor to prevent cheating.

Assuming negative results, the employee is now eligible to return to safety-sensitive work.

4- Follow up tests– The SAP also requires Follow Up testing, which can be as long as 5 years, with a minimum of 6 in the first 12 months. All Follow Up drug tests are performed under direct observation and are to be unannounced. The employer is charged with carrying out the Follow Up testing.

Even though Follow Up testing is the employer’s responsibility, InOut Labs provides reminders to our clients as a courtesy.

How The FMCSA Clearinghouse Fits In


There are always a lot of them. Feel free to ask.

Check out Tim discussing the Return To Duty Drug Testing Process for DOT Regulated Employees

If you are a seasonal employer of CDL drivers, you need to understand this overlooked and misunderstood DOT requirement.

DOT-regulated employees who are not in a drug testing pool for more than 30 days must pass a pre-employment drug test when they are re-hired.

Even if your seasonal employees are not DOT-regulated, this is good practice.

So if they are laid off for the winter, for example, they need a pre-employment drug test when rehired in the spring.

BUT, if a driver is available to perform safety-sensitive duties (i.e. drive a vehicle that requires a CDL) — even in the “off season” – s/he must remain enrolled in a random testing pool. So, if an employee is “on call,” then keep him enrolled.


Some of our seasonal employers keep their drivers in the pool in the off season, and have them tested if selected, even if not driving. Others take them out and test on re-hire.

Here is the rule:


Question 3: Is a pre-employment controlled substances test required if a driver returns to a previous employer after his/her employment had been terminated?

Guidance: Yes. A controlled substances test must be administered any time employment has been terminated for more than 30 days and the exceptions under §382.301(c) were not met.

Question 4: Must all drivers who do not work for an extended period of time (such as layoffs over the winter or summer months) be pre-employment drug tested each season when they return to work?

Guidance: If the driver is considered to be an employee of the company during the extended (layoff) period, a pre-employment test would not be required so long as the driver has been included in the company’s random testing program during the layoff period. However, if the driver was not considered to be an employee of the company at any point during the layoff period, or was not covered by a program, or was not covered for more than 30 days, then a pre-employment test would be required.

For any non-regulated employees who are laid off for a period of time, we always recommend a pre-employment drug test when they are re-hired. You should describe this in your written policy as well.
Please let us know if you have questions.

For more information on employee drug testing for all industries, contact InOut Labs at www.inoutlabs.com or toll free at 847-657-7900.

Many employers wonder whether they are covered under the U.S. Department of Transportation or DOT drug & alcohol testing regulations. Here is a primer regarding the different modes that fall under DOT. All are covered under 49 CFR Part 40, and each mode has its own set of regulations:

1) Aviation (FAA): If you’re employed in safety-sensitive roles like pilot, flight attendant, flight instructor, aircraft dispatcher, operations control specialist or air traffic control you are covered under

2) Truck or School Bus (FMCSA): If you operate a truck or a bus with a gross weight of 26,001 or more lbs, or of any size that is used to transport hazardous materials that requires placarding, you are subject to drug & alcohol testing regulations covered under

This includes individuals who may operate these vehicles only occasionally, like mechanics who must conduct test drives, and supervisors, who may fill in when a regular driver is unavailable.

3) Public transportation (FTA): If you operate a transit revenue service vehicle, a non-revenue vehicle or armed security vehicle you are covered under following regulation

4) Pipeline and Hazardous Materials (PHMSA): If you perform the operational maintenance and emergency functions of pipelines regulated under 49 CFR part 193 that transports liquefied natural gas or 49 CFR part 192 that transports natural gas you are subject to drug and alcohol test covered under

Random alcohol testing is not authorised under PHMSA regulations, though the random drug testing rate is higher than other modes.

5) Railroad (FRA): If you perform the function of a train employee, dispatch employee or signal employee, at least once a quarter you are subject to drug and alcohol test regulations under

  • FRA (49 CFR part 219)

Categories of personnel who are normally required to participate are locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators, and train dispatchers.

FRA’s post-accident testing rule requires urine and blood specimen collection from surviving employees and also tissue from deceased employees (these collection procedures go well beyond the normal Part 40 procedures).

6) Coast Guard (USCG): Coast Guard is a bit different because it also includes military. An individual who is on board a vessel acting under the authority of a license, certificate of registry, or merchant mariner’s document is covered. Also, a person engaged or employed on board a U.S. owned vessel and such vessel is required to engage, employ or be operated by a person holding a license, certificate of registry, or merchant mariner’s document.

  • 46 CFR Part 4.06 and 33 CFR Part 95.035 detail the USCG rules for alcohol testing.

If you want to know what is supervisor training,  you should know that it is also known as Reasonable Suspicion Training and it’s required of DOT employers.
Supervisor training educates supervisors about workplace drug testing policies and informs supervisors their responsibilities when it comes to enforcing those policies. Supervisor training must be effective and have a long-lasting impact on the audience.

When live training is not cost effective or logistically difficult, online training can be a practical way to deliver supervisor training.

What’s Included in Supervisor Training?

Some supervisors attend training only once, while others attend annually, and others may never go through the process at all. Certainly a refresher is a good idea, though not a requirement.

Each mode of the DOT supervisors training requirements. Some must occur in a single session and others must reoccur periodically.

Supervisors should have a basic knowledge and understanding of the different components of drug and alcohol testing, including the collection process: (e.g. an explanation of why a split specimen is collected), what happens when a specimen is received by the laboratory, what role the Medical Review Officer (MRO) plays, and when and why a Substance Abuse Professional (SAP) is required.

Reasons for testing, and when to perform each of them should be included in training. For example, training should cover the definition of post-accident, random and drug testing for suspicion or cause.

The U.S. Department of Transportation (DOT) definition of an accident varies from mode to mode, and states may have their own definitions of what constitutes an accident.

Some states require a dollar amount assessed on property damage to define a workplace accident that necessitates a drug and/or alcohol test. It is important to know the requirements for each state in which the employer operates.

Supervisors should clearly understand their role in the drug and alcohol testing process. They should be able to recognize workplace problems related to drugs or alcohol, be familiar the physical signs and symptoms of their use and abuse, and understand what their responsibilities are.

A critical part of testing for suspicion is documentation of the situation. The best way to appropriately document a reasonable cause situation is the use of a checklist for signs and symptoms. A supervisor should not be expected to make a diagnosis, since many of the signs and symptoms of drug use appear similar. A checklist provides both guidance through the documentation process, and uniformity in what, and how an employee’s behavior is documented. It also helps to eliminate the fear associated with making a reasonable suspicion call in the workplace through the use of a standard managerial process.

It is important for the supervisor to understand how to intervene with the employee, and also how to recognize the difference between a performance-based issue and a potential crisis situation.

A supervisor should learn how to approach an employee without using language that is accusatory or inflammatory. The employee interaction should be approached with concern for the employee and be carried out in a professional and respectful manner. Proper supervisor training appropriately will give supervisors confidence when situations arise.

Maintaining confidentiality with the individual suspected of drug or alcohol use is critical. Even though it’s very tempting for a supervisor to confide in a co-worker about the situation, this should be avoided. The supervisor should approach the employee in a private setting and not in front of their co-workers. It is acceptable, however, to have another supervisor present when the employee is approached. In fact, many DOT modes and state laws require more than one individual to make a determination of reasonable suspicion.

Proper supervisor training protects the employer, the supervisor and even the individual suspected of drug or alcohol use at work. Don’t wait till a crisis develops. Be prepared.


If you want to find out more about what are the consequences of a refusal to test, the following is summarized from DOT Rule 49 CFR Part 40 Section 40.191

As an employee, you have refused to take a drug or alcohol test if you:

Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA.

Fail to remain at the testing site until the testing process is complete. Exception is if it’s a pre-employment test and you leave before the process begins.

Fail to provide a urine specimen for any drug test or fail to provide a sufficient amount of urine, and there is no adequate medical explanation for the failure.

Fail or decline to take any drug test the employer or collector has directed you to take.

Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector).

For an observed collection, fail to follow the observer’s instructions to raise your clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process.

Possess or wear a prosthetic or other device that could be used to interfere with the collection process.

Admit to the collector or MRO that you adulterated or substituted the specimen.

A Refusal To Test has the same consequences as a positive test result.


If you want to know what is an MRO (Medical Review Officer), you should that that this is a person “who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results. As a MRO, you act as an independent and impartial “gatekeeper” and advocate for the accuracy and integrity of the drug testing process. You provide quality assurance review of the drug testing process for the specimens under your purview, determine if there is a legitimate medical explanation for laboratory confirmed positive, adulterated, substituted and invalid drug test results, ensure the timely flow of test result and other information to employers and protect the confidentiality of the drug testing information”.

Source: Medical Review Officers | US Department of Transportation\\

In Summary, the MRO:

  • Is a licensed physician (M.D. or D.O.).
  • Receives and reviews (drug test) laboratory results.
  • Evaluates medical explanations for certain drug test results.
  • Is an independent and impartial “gatekeeper.”
  • Is an advocate for accuracy and integrity.
  • Is responsible for quality assurance review.
  • Determines if there is a legitimate medical explanation.
  • Ensures the timely flow of test result and other information to employers.
  • Protects confidentiality.