By Tim Thoeleke, CSAPA, InOut Labs
As the owner of a small C/TPA, I do my best to be a trusted advisor to our clients. To that end, I frequently exchange thoughts and insights with colleagues one on one and at NDASA’s weekly Town Hall. In this industry, I believe that if we help one another, we all get better, which is good for the industry. NDASA Town Hall is a great place to learn and share ideas, problems, questions and more. When those oddball situations come up, and they do, Town Hall is a great place to discuss. This is one of those conundrums.
When a driver has failed a DOT FMCSA drug test, employers have asked us if it is okay for him or her to drive a smaller vehicle while going through the Return-To-Duty process. An informal survey of colleagues provided mixed results.
Here is how I currently see it. I am happy to discuss if you see this differently.
§ 382.501 Removal from safety-sensitive function.
(a) Except as provided in subpart F of this part, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of this part or an alcohol or controlled substances rule of another DOT agency.
(b) No employer shall permit any driver to perform safety-sensitive functions, including driving a commercial motor vehicle, if the employer has determined that the driver has violated this section.
(c) For purposes of this subpart, commercial motor vehicle means a commercial motor vehicle in commerce as defined in § 382.107, and a commercial motor vehicle in interstate commerce as defined in part 390 of this subchapter.
A CMV Has More Than One Definition
| Part 382.107 | Part 383.5 | Part 390.5 |
|---|---|---|
| Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle | Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle is a— | Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle— |
| (1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or | (1) Combination Vehicle (Group A)—having a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or | (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or |
| (2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or | (2) Heavy Straight Vehicle (Group B)—having a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or | (2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or |
| (3) Is designed to transport 16 or more passengers, including the driver; or | (3) Small Vehicle (Group C) that does not meet Group A or B requirements but that either— (i) Is designed to transport 16 or more passengers, including the driver; or | (3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or |
| 4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F). | (ii) Is of any size and is used in the transportation of hazardous materials as defined in this section. | (4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C. |
As a general rule, part 382 covers vehicles requiring drug testing. However, 382.501 seems to impose restrictions on smaller vehicles, but only for CDL holders with unresolved violations under Part 382, and only if they operate in interstate commerce.
It seems 382.501 would NOT prohibit a CDL driver with a drug or alcohol violation from operating a vehicle under 26,001 lbs. (or any other in the 390.5 CMV definition), if he or she operates the vehicle only intrastate.
Of course, some states may also have other restrictions.
What about the Clearinghouse 2.0 Rule?
The Clearinghouse 2.0 Rule, which took effect Nov. 18, 2024, requires State Drivers License Agencies (SDLAs) to downgrade licenses for any driver who is Prohibited in the Clearinghouse. Since no CDL is required to operate vehicles described in 382.107, then a downgrade seems irrelevant when it comes to smaller vehicles. But Employers must still be mindful of the prohibition in 382.501.
And Medical Cards?
Unless a driver lies during the medical exam, a violation would be disclosed during the medical exam required by Part 391.41, and a medical card would not be issued. This would affect drivers of CMVs that do not require CDLs.
Tim Thoelecke, C-SAPA, is the founder of InOut Labs.InOut Labs is a nationwide provider of employment screening services. Tim is one of an elite group of Certified Substance Abuse Program Administrators. InOut Labs’ websites: www.inoutlabs.com (Drug Testing and DOT Compliance); www.screeningwise.com (Background Screening); www.drugtestingshop.com (E-commerce drug tests); www.labtestshop.com (E-commerce medical tests) and www.driverfilehub.com (DQ File Management). InOut Labs is BBB Accredited with an A+ Rating.