Drug & alcohol testing for student drivers
The first foray into trucking for many commercial drivers is some type of truck driving or CDL school. These institutions provide a valuable service and mission-critical training to these prospective drivers, helping to ensure they are equipped with the foundational knowledge and skills to safely operate large trucks and buses. CDL schools took on an even more prominent role in the industry with the Entry Level Driver Training (ELDT) rules that took effect in 2022.
One question you'll occasionally hear in this context is: are student drivers subject to DOT drug & alcohol testing rules while they are enrolled in CDL school? Unfortunately, as is true with many of the regulations that govern commercial transportation, the answer isn't as clear as it could be. We'll dig into the minutia below, but simply put: Yes, student drivers who hold Commercial Learners' Permits (CLPs) are subject to DOT drug & alcohol testing while training to obtain their CDLs. How that plays out in practice is more complex.
Applicability of drug & alcohol testing rules
Before diving right into the CDL school context, it's important to first understand when the DOT's drug & alcohol testing rules apply more broadly. As we've addressed in other articles, carriers and drivers who operate the following categories of commercial motor vehicles (CMVs) in interstate or intrastate commerce are subject to the drug and alcohol testing rules in Parts 40 and 382 of the FMCSRs:
Combination vehicles having a GCWR or GCW of 26,001 lbs. or more, inclusive of a towed unit with a GVWR or GVW of more than 10,000 lbs.; or
Heavy straight vehicles having a GVWR or GVW of 26,001 lbs. or more; or
Smaller vehicles that do not fit in categories (1) or (2) but that either—
Are designed to transport 16 or more passengers, including the driver; or
Are used to transport placardable quantities of hazardous materials.
In other words, drivers operating vehicles that require a CDL are generally subject to DOT drug & alcohol testing rules. Generally speaking, these rules require "employers" to have a compliant testing program and policy in place that are applicable to all drivers who operate the CMVs listed above. The program must include the following types of tests: pre-employment drug screens, random drug and alcohol testing that meets the minimum rates set by the USDOT, post-accident drug and alcohol testing, reasonable suspicion drug and alcohol testing, and return-to-duty testing if the carrier engages drivers who have previously tested positive.
Drivers who commit a violation of the drug and alcohol testing rules (e.g., positive tests, refusals to test) are prohibited from operating a CMV unless and until they meed with a Substance Abuse Professional (SAP) and compete the return-to-duty process, which involves follow-up tests.
Additionally, starting in 2020, employers must now participate in the FMCSA’s Drug and Alcohol Clearinghouse, which is a central repository for drug and alcohol testing information on all commercial drivers who are subject to the federal drug and alcohol testing rules. Employers subject to the drug and alcohol testing rules must register with the Clearinghouse, run initial full queries through the Clearinghouse on any new hires, run annual limited queries on all existing drivers who are subject to drug and alcohol testing, and make reports to the Clearinghouse of certain types of program violations (e.g., refusals to test, actual knowledge of drug or alcohol use).
Are CDL schools "employers" for drug & alcohol testing purposes?
That's the million dollar question! As noted above, the drug & alcohol testing rules in Parts 40 and 382 apply, by their own terms, to so-called "employers" and "employees." The regulations define "employer" as follows:
Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in this part, means the entity responsible for overall implementation of DOT drug and alcoholprogram requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part. 49 CFR 382.107.
Apparently the USDOT and FMCSA aren't too concerned with circular definitions, as they define an employer to essentially mean one who employs employees. And therein lies the problem in determining whether CDL schools are "employers" for purposes of DOT drug & alcohol testing.
In most cases (though not all), CDL schools are NOT the legal employers of the students enrolled in their programs. The students are more often than not paying the schools for the privilege of attending the training, not the other way around. So, from a strictly legalistic viewpoint, CDL schools would rarely qualify as the "employers" of truck driving students.
The FMCSA most recently confirmed this view in a written opinion that it issued in a civil penalty case back in 2019. In that case, the agency was tasked with deciding whether a CDL school had violated the drug & alcohol testing rules by failing to test its students. In ruling in the school's favor, the FMCSA explained that "[u]se of the term ‘employing’ within the definition indicates that the relationship between the employee/driver and the employer/person or entity is the key factor...[the CDL school] operates a driving school and employs teaching instructors, the students are not employees. Rather than being paid as employees, students pay [the school] a tuition.”
That said, the FMCSA at least left open the possibility that even if a student isn't paid to attend a school, the school could conceivably be deemed an "employer" if it exercises sufficient direction and control of those students such that it becomes an employer under federal/state employment law. See Opinion at 9-10. We won't get into the details of that possibility in this article. Sufficed to say, the FMCSA's opinion indicates that in most cases, a CDL school will not be considered the "employer" of its students for drug & alcohol testing purposes.
Now, putting aside students for the moment and as noted in the FMCSA's opinion, CDL schools pretty regularly employ their trainers (i.e., those teaching students how to drive). In those cases, the CDL schools are "employers" of those trainers and, assuming the trainers are operating CDL-sized vehicles on public highways, would be responsible for complying with the DOT drug & alcohol testing regulations vis-a-vis those trainers.
So, back to the students...if the CDL schools aren't their "employers" under DOT drug & alcohol testing rules, does that mean they aren't subject to drug & alcohol testing? No.
Who is responsible for drug & alcohol testing student drivers?
So if the CDL schools aren't responsible for drug & alcohol testing their students, who is? Here's where things really get screwy!
First off, the FMCSA is careful to explain throughout its 2019 opinion that just because CDL schools aren't "employers" of their students doesn't mean the students aren't subject to drug & alcohol testing while they are enrolled in these training programs. In fact, the agency has issued written guidance on this topic, which states:
Question:
Is a person who is attending a truck driving school, and does not yet have a commercial learner’s permit (CLP) or CDL, required to complete the part 40, subpart O return-to-duty process if they test positive on a drug or alcohol test administered by the school?
Answer:
Student drivers who do not have a CLP or CDL are 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 drug or alcohol test and the student would not be subject to the DOT return-to-duty process. If a driver training school employs a student driver, who holds a CLP or CDL, 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. See 49 CFR 382.103.
The guidance again reiterates that a truck driving school is only obligated to drug & alcohol test students if it "employs" them. However, notice that it goes on to say that "the student driver is ultimately responsible for meeting these requirements." In other words, for drug & alcohol testing purposes, the FMCSA views student drivers as "self-employed" and, therefore, responsible for complying with the drug & alcohol testing regulations on their own.
Unfair and backwards? In our opinion, yes.
So how does the FMCSA expect these so-called "self-employed" students to test themselves? Well, the agency hinted at its exception in the guidance cited above; however, the expectation is made more apparent in information the agency makes available on its Drug & Alcohol Clearinghouse website, which is included below.
In short, the FMCSA expects student CDL drivers to enroll in a third-party drug & alcohol testing consortium, similar to self-employed owner-operators, and be tested through that third-party program. The agency goes so far to say that even though CDL schools aren't "employers" under the drug & alcohol testing regulations, they can serve the role of a consortium and/or third-party administrator (TPA) on behalf of their students.
Is this likely to happen in reality? Probably not. In our experience, most student drivers are simply slipping through the cracks. CDL schools aren't DOT testing the drivers and the drivers aren't doing it themselves. So in all likelihood, there are tens of thousands of CDL school drivers operating on public highways each year who are in violation of the drug & alcohol testing rules and haven't been tested.
Can we blame them? Not really...the FMCSA and USDOT have done them no favors by overcomplicating these regulations and their guidance on the topic.
Do CDL students' drug & alcohol violations get reported to the Clearinghouse?
Now that we know CDL students, assuming they hold a CLP, are subject to DOT drug & alcohol testing, another question is whether their violations get reported to the Clearinghouse. The answer is that they should be. As demonstrated by the Clearinghouse infographic included above, the FMCSA obviously expects for CDL students' drug & alcohol testing violations to filter into the agency's Clearinghouse. It also expects that the required Clearinghouse queries are run on these students. But by whom? According to the guidance, it is ultimately the student's responsibility to ensure the Clearinghouse obligations are met, and the FMCSA expects this will be most often handled by TPAs appointed by the individual students.
Conclusion
Long story, short...CDL students who hold a CLP are subject to DOT drug & alcohol testing while training to obtain their CDL. This means they must be pre-employment tested, enrolled in a random testing pool, and more. But whose responsibility is this? According to the FMCSA, the students themselves bear the burden of complying with these rules, assuming they aren't legally "employed" by the CDL school. And to discharge these responsibilities, the agency expects the students to enroll in a third-party consortium, whether administered by the CDL school or someone else.
If you have questions about this issue or other regulatory topics, feel free to reach out.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.