Who Must Submit to Reasonable Suspicion Testing in Commercial Vehicle Operation?

The job of identifying potential drug use by a commercial driver is subjective, only to be done by a trained supervisor. All CDL holders must comply.

The Transportation Employee Testing Act – passed in 1991 and in full effect 1995 – specifies that employers in the transportation industry are responsible for maintaining alcohol- and drug-free workplaces. In other words, any driver-employee who is or could be called upon to operate a commercial vehicle cannot do so while under the influence of alcohol or drugs.

With this responsibility placed on employers as well as drivers (who by definition hold commercial drivers’ licenses, or CDLs), it is essential that supervisors of drivers be responsible for policing behaviors on a day-to-day basis. That is true in many respects: defamatory, sexually harassing, and discriminatory behaviors are regulated as well with specific means for prevention, enforcement, and redress. Safety around large commercial vehicles that occupy and move in the public space should similarly be managed carefully, effectively, and consistently. Supervisors, then, receive what is termed “reasonable suspicion training”.

Supervisor training to identify possible on-the-job drug and alcohol use

All of which puts the employer into a challenging, subjective situation with regard to “reasonable suspicion.” Some erratic behaviors lead to obvious suspicion, but how does a supervisor make the determination? And can the mere task of sending an employee for drug and alcohol testing be a tool of harassment?

The law as regulated by the Federal Motor Carrier Safety Administration (FMCSA) protects against subjectivity. It stipulates three scenarios be considered:

• When a trained supervisor observes adverse behaviors.
• Testing is NOT warranted when an untrained person reports it. This prevents the law from being misused, perhaps as a means of undercutting an individual and otherwise causing nuisance testing. Testing should be applied only when there is reasonable cause to do so.
• When a trained supervisor who is not the employer observes suspicious behavior: In many situations in the freight industry, interaction occurs between individuals of different employers (often at warehouses and other depot settings). When a trained supervisor at Company A sees suspicious behaviors by someone who works for Company B, that supervisor is empowered and encouraged to contact Company B to suggest testing; that supervisor is also encouraged to contact law enforcement if the situation calls for it.

What constitutes actual suspicious behavior? Supervisor training manuals typically describe, in detail, such things as behavior, appearance, speech, and body odors as initial clues.

Rules on alcohol vary slightly

Final note: These rules and guides primarily apply to the use of controlled substances. Because alcohol is generally a legal substance an individual undergoing withdrawal symptoms, a “hangover,” is not a triggering behavior for testing. Only its use or presence in sufficient concentrations while operating a commercial vehicle is considered a violation of the law.