Legal Alert DOT Drug Testing Policy

Authored by Theodore T Storer


In 1991 Congress passed the Omnibus Transportation Employee Testing Act, requiring DOT agencies to implement drug and alcohol testing of safety-sensitive transportation employees. The DOT adopted regulations for this drug testing at 49 CFR Part 40, or Part 40 as most people call it.  Part 40 is a DOT-wide regulation that tells employers how to conduct testing and how to return employees to safety-sensitive duties after they violate a DOT drug and alcohol regulation.
Part 40 applies to all DOT-required testing, regardless of mode of transportation.  Airline employees covered by FAA rules and trucking company drivers covered by FMCSA rules must comply with Part 40 procedures for collecting and testing specimens and reporting of test results. Each DOT Agency-specific regulation spells out who is subject to testing, when and in what situations testing is required for a particular transportation industry.


Employers subject to Part 40 regulations should have a written Drug and Alcohol Testing policy in place.  This policy can be part of a handbook, or a separate policy issued to employees.  Policies vary on their detail about the testing procedures.  However, Part 40 does seem to say that the policy must state that there are five classes of drugs that the tests screen for:

  • Marijuana
  • Cocaine
  • Opiates – opium and codeine derivatives
  • Amphetamines and methamphetamines
  • Phencyclidine – PCP
Normally, government regulators request specificity.  However, in a turn of events, Part 40 regulators are allowing a more general policy.  The Federal Transit Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, Pipeline and Hazardous Materials Safety Administration, Federal Railroad Administration, and USCG all agree that employers may generalize their policies and state that a policy adheres to Part 40.


First, if your current policy contains specific sub-listings of drugs, you must make changes to your policy effective January 1, 2018.  Employers have two options:

  1. Delete references to sub-categories.  As an example, if a policy lists “Opiates (codeine, heroin, & morphine)” and/or “Amphetamines (amphetamine, methamphetamine, MDMA, MDA, MDEA),” then “Opiates” needs to change to “Opioids (codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone)” and “MDEA” will need to be removed from the list under Amphetamines.
  1. Delete the sub-categories and only list the 5 main classes of drugs above.
Second, if your current policy lists the specific cut-off levels for these drugs, employers must update those cut-off levels to the new 2018 levels. Similar to the drug list above, employers may simply remove the specific cut-off levels completely and be in compliance if the DOT policy refers to adhering to “… Part 40.”

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