Under federal regulation 49 C.F.R. §382.303, drivers of commercial motor vehicles are required to undergo drug (“controlled substance”) and alcohol testing following an accident if certain circumstances are involved. Importantly, §382.303 also imposes strict time limits within which drug/alcohol testing must occur, and even prevents testing if the allotted time has passed. Lastly, if alcohol/drug tests were required, but not completed, §382.303 requires documentation of the circumstances that prevented such testing.
Circumstances Requiring Post-Accident Alcohol and Drug Testing
The circumstances requiring post-accident alcohol testing are almost the same as the circumstances that require drug testing. In other words, if an alcohol test is required post accident, a drug test is likely required, but there are small differences.
Under §382.303, the driver of a commercial motor vehicle must under go alcohol and drug testing following a motor vehicle accident on a public road in commerce if the accident involves a human fatality.
Under §382.303, a commercial driver must under go alcohol testing following a motor vehicle accident under the following circumstances:
1. If the accident involves a human fatality; or
2. If the commercial driver receives a citation within 8 hours of the accident; AND
a. A person suffers bodily injury and receives medical treatment AWAY from the scene (e.g., is taken to the hospital); OR
b. A vehicle involved in the accident suffers disabling damage requiring it to be towed.
The circumstances requiring a post-accident drug test are almost identical except a drug test is required if the above circumstances are met and the driver receives a citation within 32 hours (as opposed to the 8 hours for an alcohol test).
To simplify the basics of the rules, §382.303 includes the following handy chart:
The only important information left out of the chart is the citation within 8 hours/32 hours difference for alcohol and drug testing.
Important Timing and Record Requirements for Post Accident Testing
Although most employers with commercial vehicle driver know and understand when post accident drug/alcohol testing is required, far fewer know and understand (1) the timing deadlines for when such testing must occur and (2) what to do when the commercial driver fails to undergo the required testing.
Under §382.303(d)(1), if a required post accident alcohol test is not administered within 2 hours following the accident, then the employer must “prepare and maintain on file a record stating the reasons the test was not promptly administered.” If an alcohol test is not administered within 8 hours, the employer must “cease attempts to administer an alcohol test and shall prepare and maintain the same record [stating why the test was not performed].”
Similarly, §382.303(d)(2), requires a drug test within 32 hours, or the employer must “cease attempts to administer a controlled substances test, and prepare and maintain on file a record stating the reasons the test was not promptly administered.”
Takeaways
1. Make sure commercial motor vehicle driver are tested for drug and alcohol following fatality accidents, or accidents in which a citation was given to the commercial driver and someone was injured or a vehicle was disabled and towed;
2. If on of your drivers fails to timely take a required post-accident drug/alcohol test, be sure to document why the test was not performed. Documentation of a solid explanation as to why the testing was not performed can save a lot of headache if you are sued or audited by the FMSCA.
3. Required post-accident alcohol testing should be performed within 2 hours, the employer must prepare and maintain a file explaining why the test was not promptly completed;
4. If a required post-accident alcohol test is not performed within 8 hours, the employer must stop attempting such a test and then prepare a file explaining why the test was not completed;
5. If a required post-accident drug test is not performed within 32 hours, the employer must stop attempting such a test and then prepare a file explaining why the test was not completed.
