Row 5: No random drug and alcohol testing program (49 CFR 382.305)
Row 5 fails a new carrier that has not implemented a random controlled substances and alcohol testing program. It is separate from row 1: a carrier can have a policy and pre-employment tests and still fail here.
What the rule requires
49 CFR 382.305 requires every employer to run random alcohol and drug testing, and every driver to submit to it. Key parts:
- Rates. The base minimum annual rates in the rule are 10% of average driver positions for alcohol and 50% for drugs; FMCSA can raise or lower them based on industry data and publishes changes in the Federal Register, effective January 1 of the following year. Check the rate for the current year with your consortium.
- Selection. By a scientifically valid method, such as a random-number generator matched to driver IDs. Every driver must have an equal chance each time, and selected drivers must be tested during that selection period.
- Unannounced and spread out. Tests must be unannounced and spread reasonably through the year.
- Go immediately. A selected driver must proceed to the test site immediately after notification.
- Pools. Only covered drivers may be in the pool, and all covered drivers must be. A C/TPA may run selections in a larger pool, but the employer must make sure it tests at the required rate.
Owner-operators
An employer who employs only himself or herself as a driver must be in a random pool of two or more covered employees (49 CFR 382.103). A one-person company can't run its own random program; joining a consortium is the practical way to comply.
Records that prove the program exists
- The consortium enrollment certificate showing your company and each CDL driver in the pool.
- Selection lists and notifications for each period, kept for two years as collection-process records (49 CFR 382.401).
- Test results: negatives for one year; positives, results of 0.02 or greater and refusals for five years (49 CFR 382.401).
- The annual calendar-year summary, kept for five years.
A new driver who isn't added to the pool, or a pool that dropped your company when an invoice went unpaid, are common ways to slip out of compliance without noticing. Ask the consortium for your current roster each quarter and compare it with your driver list.
How to fix it
- Enroll with a consortium/TPA and add every CDL driver, including yourself if you drive.
- Get written confirmation of enrollment with the date, and keep it.
- Set up how you'll be notified of selections and how you'll send drivers immediately.
- Keep paying the consortium; a lapsed membership can mean no random program.
If an auditor finds this violation, the audit fails. FMCSA then has up to 45 days to send written notice, and you get 60 days from the notice date to fix the problem and prove it (45 days for certain passenger and hazmat carriers) before your new entrant registration is revoked (49 CFR 385.319, 49 CFR 385.325). The overview explains the timeline.