NDASA Asked and FMCSA Answered: New Guidance on Student Drivers

| By Patrice M. Kelly, JD, Senior Policy Executive Advisor for NDASA

At a recent NDASA Townhall discussion there were many questions about whether truck driving schools are required to conduct DOT-regulated drug and alcohol testing on student drivers. 

We followed up with the Federal Motor Carrier Safety Administration (FMCSA) for answers.  

According to the FMCSA, there was a change in guidance on this issue after a 2019 decision in the case of Watson Enterprises of the Carolinas, LLC. In the case, Watson, a truck driver school, was successfully able to overturn an FMCSA finding that it had violated FMCSA regulations by “using a driver known to have tested positive for substance use.” The FMCSA decisionmaker who overturned the initial finding, determined that the driving school “was not an employer of the student drivers with regard to the alleged violation of § 382.215; and (2) the school was not a motor carrier – either for-hire or private – with regard to the alleged violation of § 390.19(a)(2).”  

Based on this decision, FMCSA has determined that a truck driving school is only considered an “employer” who can conduct DOT-regulated drug and alcohol testing on student drivers in very limited circumstances. Specifically, a driving school is the student’s employer for drug and alcohol testing purposes only when the student is an actual employee working for the school and engaging in commercial transportation such as the movement of goods of passengers for hire, or when the student leases a vehicle from the school for commercial transportation. Otherwise, the truck driving school is not the employer of the student driver and must not administer DOT-regulated drug and alcohol testing to its students.  

If the truck driving school is not actually the student’s employer, the school has no authority to direct or conduct any form of DOT-regulated drug testing, including pre-employment testing. Essentially, the student is treated similarly to an owner-operator, and once the student possesses a Commercial Learner’s Permit (CLP) or Commercial Driver’s License (CDL), the student is responsible for their own compliance with Part 382 while enrolled in the school as a student driver.

Further Guidance

Below are some resources FMCSA shared with NDASA to help further explain and answer questions on this topic:

• Applicability to part 382 student drivers and driver training schools
  This document provides guidance on the following questions:
  Question: Are student drivers subject to the return to duty process after a non-negative test or refusal?
  Guidance: This document explains that a student who does not have a CLP or CDL is not subject to the DOT drug and alcohol testing requirements. Therefore, a drug test performed by the driving school on a student who does not have a CLP or CDL is not a DOT-regulated drug or alcohol test (it would be a non-DOT test) and the student would not be subject to the DOT return-to-duty process for a non-negative result or a refusal.
  
  Question: When is a truck driving school required to conduct DOT-regulated testing? 
  Guidance: The document explains that the regulations in 49 CFR Part 382 (drug and alcohol testing) apply to the driver training school when the student driver is employed by the driving school or when the truck driving school leases a CMV to the student driver for operation in commerce. 
  
  Question: Is a driving school responsible for its students’ compliance with testing regulations? 
  Guidance: If the school is not an “employer,” the student driver is ultimately responsible for meeting the drug and alcohol testing requirements for commercial operators. The school may, however, ensure that the student driver has complied with the requirements of part 382 prior to allowing the student driver to operate a CDL vehicle. 

• Section § 382.103: Applicability
  This document provides guidance on the following questions:
  Question 2a: Are students training to be commercial motor vehicle drivers subject to drug and alcohol testing?
  Guidance: Yes. The regulations in 49 CFR Part 382 apply to drivers operating a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL) or commercial learner’s permit (CLP) in commerce. 
  
  But read this, also:
  Question 2b:  What is the driving school’s responsibility for drug and alcohol testing? 
  Guidance: If a driver training school employs a student driver or leases a CMV to the student driver and the CMV is operated in commerce by the school, then the regulations in 49 CFR Part 382 apply to the driver training school. If the school is not an employer, the student driver is ultimately responsible for meeting these requirements, however, the school may ensure that the student driver has complied with the requirements of part 382 prior to allowing the student driver to operate a CDL vehicle.
  
  And read this:
  Question 2c: Are student drivers required to obtain a CDL in order to operate CMV training vehicles provided by the school?
  Guidance:  Not necessarily. To operate a CMV on public roads or highways, a student driver is required to either (a) possess a valid CDL or (b) possess a valid commercial learner’s permit, which requires meeting the minimum conditions in 49 C.F.R. 383.25(a).

• FMCSA Clearinghouse Guidance on Student Driver Registration 
  This document covers how student drivers are required to register in and use the Clearinghouse.  Registration in and use of the Clearinghouse depends on the type of CDL training program the driving student attends. There are steps necessary for those enrolled in an INDEPENDENT CDL training program versus those enrolled in an EMPLOYER-BASED CDL training program.

• Clearinghouse Registration on Updating the Student Driver Role 
  This attachment addresses when an individual is required to update their student driver role in the Clearinghouse when the individual is no longer considered to be a student driver – when they are no longer enrolled in a CDL school and will be performing safety-sensitive functions.
  
  The attachment also addresses how to carry out the specific steps for updating their role in the Clearinghouse.

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Remember:  FMCSA is the authoritative source for all Clearinghouse information and how to interpret and understand the FMCSA’s drug and alcohol testing regulations.