Workers Rights

Alcohol Testing Procedures

This summary provides an overview of the way alcohol tests must be conducted.

Testing Devices

Tests must be conducted with evidential breath test devices (EBTs) approved by the National Highway Traffic Safety Administration (NHTSA).

Screening Tests

A Breath Alcohol Technician (BAT) administers the test. The employee's supervisor may not administer the test unless that employee's supervisor is the only available qualified BAT.

An individually sealed mouthpiece must be opened in view of the employee and attached to the EBT. The employee blows forcefully into the mouthpiece for at least six seconds, or until an adequate amount of breath has been obtained.

If the result is under 0.02, the BAT records the result and no further testing is performed.

Confirmation Tests

The confirmation test is conducted at least 15 minutes but no more than 20 minutes after the screening test.

Before the confirmation test, a test is run (air blank) to make sure the EBT is working properly.

If the screening and confirmation test results are different, the confirmation test result is the one that is used.

Inability to provide an adequate amount of breath

An employee who does not provide enough breath for the test is sent to a physician who evaluates the employee's medical ability to provide an adequate amount of breath. If the doctor is unable to find a medical explanation for the employee's failure to provide enough breath, the employee will be considered to have refused to take a test, which is prohibited in these rules.

Department of Transportation Drug and Alcohol Testing Regulations

The Department of Transportation (DOT) has issued new drug and alcohol testing rules. The regulations are the result of the Omnibus Transportation Employee Testing Act of 1991. These regulations cover 7.4 million workers with safety-sensitive responsibilities regulated by the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), and the Research and Special Programs Administration (RSPA).

Each of these agencies has its own, similar regulations. The Federal Highway Administration rule is summarized in greatest detail because this regulation affects the most AFSCME members. State and local government employees who are required to have a commercial driver’s license (CDL) are all covered by the Federal Highway Administration rule.

The meaning of employees who perform safety-sensitive functions is different in the various regulations:

Federal Highway Administration:

  • Drivers who operate commercial motor vehicles

Federal Transit Administration:

  • Operating a revenue service vehicle
  • Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver's License
  • Controlling dispatch or movement of a revenue service vehicle
  • Maintaining a revenue service vehicle or equipment used in revenue service
  • Carrying a firearm for security purposes

Research and Special Programs Administration:

  • Employees who perform an operation, maintenance, or emergency-response function on a pipeline or at a liquefied natural gas facility

Federal Aviation Administration:

  • Flight crewmember
  • Flight attendant
  • Flight instruction
  • Aircraft dispatcher
  • Aircraft maintenance or preventive maintenance
  • Ground security coordinator duties
  • Aviation screening
  • Air traffic control

The DOT rules include procedures for performing drug and alcohol tests. Alcohol tests are to be conducted using evidential breath test devices (EBTs). The drug testing procedures are already in effect. The most notable change in the drug testing procedures is the requirement for a split sample at the time of specimen collection. In the split sample method the urine specimen is divided into two containers. The purpose of the split sample is to allow the employee the opportunity to have the specimen retested at a different certified laboratory.

There are some issues concerning drug and alcohol use and testing that have been left to employers' policies or collective bargaining. These include discipline resulting from violations of these regulations and rights to rehabilitation services.

Federal Highway Administration


The FHWA regulations (49 CFR Parts 382, 391, 392, 395) apply to every person who operates a commercial motor vehicle (CMV) in interstate or intrastate commerce and who is subject to commercial driver’s license (CDL) requirements. A CMV is a vehicle that:

  • Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
  • Has a gross vehicle weight rating of 26,001 or more pounds; or 
  • Is designed to transport 16 or more passengers, including the driver; or
  • Is used to transport hazardous materials.

An employee is performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any of the on-duty functions listed below.

  • All time at a facility waiting to be dispatched, unless the driver has been relieved from duty;
  • All time inspecting equipment as required by federal regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
  • All time driving;
  • All time, other than driving time, in or upon any commercial motor vehicle, except time spent resting in a sleeper berth;
  • All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving receipts for shipments loaded or unloaded;
  • All time spent performing the driver requirements related to an accident; or
  • All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.


With regard to alcohol, no driver may:

  • Report to duty or remain on duty while having an alcohol concentration of 0.04 or higher;
  • Possess alcohol while on duty;
  • Use alcohol while performing safety-sensitive functions;
  • Perform safety-sensitive functions within 4 hours after using alcohol;
  • Use alcohol for 8 hours after an accident, or until he/she undergoes an alcohol test; or
  • Refuse to submit to a required alcohol test.

With regard to controlled substances:

  • A driver is not allowed to report to duty when he/she uses any controlled substance, except when the use is prescribed by a physician who has advised the driver the substance does not adversely affect the ability to operate a vehicle.

Required tests

Drivers must submit to a pre-employment test for controlled substances prior to the first time an employee performs a safety-sensitive function. (There is no longer a requirement for a pre-employment alcohol test.)

Drivers will be tested for alcohol and/or controlled substances use under the following circumstances:


Will be conducted for each surviving driver who was performing a safety-sensitive function if the accident involved a loss of human life or a driver receives a moving traffic violation. A collision or occurrence meets the definition of an "accident" when the incident involves a motor vehicle operating on a public road which results in: a death; bodily injury to a person who immediately receives medical treatment away from the accident; or one or more vehicles is disabled and must be towed from the scene. 

For alcohol, the test should be administered as soon as it is practical to do so. The test must be conducted within 8 hours following the accident. The employer may not attempt to administer a test after the 8 hour period. 

For controlled substances, the test must be administered within 32 hours.


For alcohol, the employer must test 25% of the average number of driving positions each year. A driver may only be randomly tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing safety-sensitive functions. 

For controlled substances, the employer must test 50% of the average number of driving positions each year. Controlled substances testing may be performed anytime while the driver is at work.

Reasonable suspicion: 

A supervisor's belief must be based on "specific, contemporaneous, articulable observation concerning the appearance, behavior, speech, or body odors of the driver." Employer representatives designated to determine whether reasonable suspicion exists must receive at least 1 hour of training on alcohol misuse and indicators of probable alcohol misuse. Employer representatives designated to determine whether reasonable suspicion exists must receive at least I hour of training on controlled substances use.

An alcohol reasonable suspicion test is to be administered promptly, and no later than 8 hours after a reasonable suspicion determination is made. The person who determines there is reasonable suspicion should not conduct the alcohol test. 

 For controlled substances, a written record must be made of the observations leading to a reasonable suspicion drug test, and signed by the company official who made the observations, within 24 hours of the observed behavior.


A driver who has violated a prohibition on alcohol use must undergo a return-to-duty test with a result of under 0.02 before returning to duty requiring the performance of a safety-sensitive function. A driver who has violated a prohibition concerning controlled substances must undergo a return-to-duty test with a negative result before returning to duty requiring the performance of a safety-sensitive function.

Follow-up testing: 

A safety-sensitive employee who has been identified as needing assistance in resolving problems associated with alcohol misuse or controlled substances use is subject to follow-up testing. The number and frequency of such follow-up testing is determined by the substance abuse professional (SAP) and consists of at least six unannounced tests in the first 12 months following the employee's return to duty. After the first year, the substance abuse professional may terminate this requirement or continue follow-up testing for another 4 years.

Testing procedures 

Alcohol confirmation tests must be conducted by a breath alcohol technician (BAT) using an evidential breath testing (EBT) device. EBTs are devices approved by the National Highway Traffic Safety Administration (NHTSA) and placed on NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL). Controlled substances tests must be conducted by urinalysis and be performed by Department of Health and Human Services (DHHS) certified laboratories.

Blood testing for alcohol or controlled substances is prohibited.

Mandatory consequences for drivers engaging in alcohol or controlled substances use conduct

Each driver who engages in prohibited conduct must be evaluated by a substance abuse professional who determines what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substances use.

Before returning to duty requiring the performance of safety-sensitive function, the driver must undergo a return-to-duty alcohol test with an alcohol concentration of less than 0.02 if the conduct involved alcohol, or a controlled substances test with a verified negative result if the conduct involved a controlled substance.

No driver with an alcohol concentration of 0.02 or greater, but less than 0.04, may perform safety-sensitive functions until the start of the driver's next regularly scheduled duty period, but not less than 24 hours after administration of the test. 

Employers are not required to discipline workers who violate the prohibitions against alcohol or controlled substances use. Nor are employers required to provide or pay for rehabilitation services. These issues are left to collective bargaining agreements, or employer policies for unrepresented workers.

Starting dates

These regulations became effective January 1, 1995 for large employers. The Highway Administration defines large employers as those with more than 50 safety-sensitive employees. Small employers must implement these regulations by January 1, 1996.


The procedures for collection and testing of urine are very detailed. Some of the most asked about provisions are presented here.

Key Definitions

Chain of custody: 

These are the procedures beginning at the time of collection to account for all handling and storage of each specimen.  

Confirmatory test: 

A second laboratory procedure used to analyze a positive test result from a screening test. Gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation test. 

Cutoff level: 

The concentration of a drug or drug metabolite in the urine at which a specimen is considered positive.  

Medical Review Officer (MRO): 

A licensed physician who is qualified to interpret and evaluate test results and other relevant medical information.

Drugs Covered

  • Marijuana
  • Cocaine
  • Opiates
  • Amphetamines
  • Phencyclidine

Specimens may only be tested for the covered drugs and the specimen may not be used to conduct any other analysis or test.

An employer may only test for other controlled substances if approved by DOT, and if there is a Department of Health and Human Services (DHHS) approved testing protocol for that substance.

Preparation for Testing

The employee is not to provide any information about prescription or over-the-counter medication to the employer or the laboratory. A standard drug testing custody and control form must be used. 

A statement on the form informs the employee that if there is a positive test, the Medical Review Officer (MRO) will contact the employee about prescription and over-the-counter medications. The employee may list medications only on the employee's copy of the form.

Specimen Collection Procedures

The area must be secure.

The chain of custody form must be completed and shipped with the specimen.

An employee's direct supervisor may not serve as the collection site person unless it is impracticable for any other person to perform this function. The collection site person is the individual that ensures that the urine specimen is collected according to required procedures.

Collection of urine specimens must allow individual privacy unless there is reason to believe that a particular person may alter or substitute the specimen. If specimen collection is directly observed by a non-medical person, the person must be of the same gender as the employee. The following circumstances are the only grounds to believe a person may alter or substitute a specimen:

The urine specimen is outside the normal temperature range (32.5°C, 90.5°-99.8°F) and the employee will not allow an oral body temperature to be taken, or the oral body temperature is 1°C/1.8°F different from the temperature of the specimen;

The collection site person observes behavior that clearly indicates an attempt to alter or substitute a specimen; or

The employee has previously been determined to have used a controlled substance and the test is a follow-up test after return to service.

A "split sample" of urine is collected. In the split sample method the urine specimen is divided into two containers. The purpose of the split sample is to allow the employee the opportunity to have the specimen retested at a different certified laboratory.

An employee must provide at least 45 ml (milliliters) of urine. Failure to provide an adequate amount of urine is considered a refusal to submit to a controlled substance test and the employee is considered to have engaged in actions prohibited by these rules. If the employee is unable to provide the minimum amount of urine, the collection site person is to have the employee drink up to 24 ounces of fluid and try to provide a sample within two hours. If the employee is still unable to provide a complete sample, the test is stopped and the employee is sent for a medical evaluation to determine if there is a legitimate reason for failure to provide a specimen or there is a refusal to submit a specimen.

Laboratory Analysis Procedures

The initial test is performed by an immunoassay test. The cutoff levels for screening tests are listed below and are expressed in Nano grams per milliliter (ng/ml), or billionths of a gram per thousandth of a liter:

  • Marijuana metabolites 50 ng/ml
  • Cocaine metabolites 300 ng/ml
  • Opiate metabolites 300 ng/ml
  • Phencyclidine 25 ng/ml
  • Amphetamines 1,000 ng/ml

A confirmation test is performed on all initial positive tests. The cutoff levels for confirmation tests are:

  • Marijuana metabolites 15 ng/ml
  • Cocaine metabolites 150 ng/ml
  • Opiates  
  • Morphine 300 ng/ml
  • Codeine 300 ng/ml
  • Phencyclidine 25 ng/ml
  • Amphetamines  
  • Amphetamine 500 ng/ml Methamphetamine 500 ng/ml

The laboratory must retain the sample in frozen storage for a minimum of one year.

After being notified of a positive test result, the employee has 72 hours in which to request that the MRO have the specimen tested in a different certified laboratory.

Reporting and Review of Results

A MRO examines all positive confirmed test results to determine if there is an alternative medical explanation for the positive test result. Before making a final decision as to whether a positive test is valid, the MRO provides the employee with the opportunity to discuss the test result. If the NMO determines there is a legitimate medical explanation for the positive test result, the MRO reports to the employer that the test is negative.