State Requirements for Employers to Report Positive Drug & Alcohol Results

Based on a number of recent inquiries, it seems that many employers are not aware of requirements to notify or report to certain State regulatory licensing authorities when a driver tests positive for drugs or alcohol or refuses to test.

Surprised? This requirement is not widely publicized partially because only seven States have this requirement: Arkansas, California, Oregon, North Carolina, New Mexico, Washington, and Texas. To add to the confusion, requirements vary from State to State. For example, some require reporting of positive results for drugs and alcohol while others require reports only for drugs – no refusals or alcohol results; some only enter this information into a data base and others actually disqualify the driver. Confusing – of course.

Lets simplify the process. First of all, these States have initiated legislature to try and close the loop where a driver has a positive drug or alcohol test result, but maintains his/her commercial drivers license (CDL) and continues to drive. All of the States attempted to mirror as closely as possible the DOT regulations. These are directed at the highway industry and drivers with CDLs who come under the authority of the DOT drug and alcohol testing requirements.

Keep in mind that each State has regulatory authority only over those drivers to whom the state issued a CDL. For example, Texas requires reporting of positive results and refusals for drugs and alcohol, but this affects only those drivers who have a CDL issued by the State of Texas. However, you have to remember that the driver does not have to be working in Texas to come under this requirement. The driver could be in Maryland where the employer is located, but if he/she has a drug positive result, the employer and the MRO (or Breath Alcohol Technician (BAT) – if the result is for alcohol) must report this to the Texas Department of Public Safety, Motor Carrier Bureau – and, it does not matter that the employer’s MRO is in New York.

On a practical level, this means that as an employer, you have to know which of your drivers have CDLs issued by one of the seven States listed above. Visit each of the States’ web sites and obtain the proper forms and instructions for filling them out. Although the forms will indicate what information is requested by each State, it would help if you identified these differences for yourself and ensure that your MRO is not only aware of these requirements and has copies of the forms, but also knows what to report to each State. Also, remember to send some documentation to the MRO as to which drivers are affected by this requirement; the same should be done for those States that require reporting of alcohol results by BATs. Generally, neither the MRO nor the BAT will know or even ask a driver what State issued the CDL, so it is up to you, the employer to make sure your MRO and BAT have this information.

Finally, Arkansas, Oregon, and Texas make their data base available to prospective employers with the applicant’s consent. If your business is located in one of these States, it probably is a good idea to query this database as part of your pre-employment background check of the applicant’s drug and alcohol history.

Co-incidentally, the DOT published an Interim Final Rule (IFR) on Friday, June 13, 2008 in the Federal Register [Vol. 73, No. 115, page 33735] addressing this very issue. This IFR authorizes employers and third party administrators (TPA) for owner-operators to comply with State laws and provide to the State CDL licensing authorities information about all violations of DOT drug and alcohol testing rules. And, more importantly, this release does not require the driver’s consent.

The DOT published this rule to avoid any potential conflict between the stringent privacy requirements under 49 CFR Part 40 and State laws requiring release of this information. The DOT felt that State action to suspend or revoke the CDLs of these drivers until they demonstrate that they have successfully complied with the Substance Abuse Professional (SAP) return-to-duty process, was justified because of safety benefits to the traveling public.