The Federal Motor Carrier Safety Administration ("FMCSA") has published another final rule which takes effect today, February 29, 2012. This rule addresses the drug use of commercial motor vehicles drivers, and the FMCSA aims to eliminate inconsistencies in at least three areas.

First, the final rule amends the physical qualifications for commercial motor vehicle ("CMV") drivers to clarify that drivers may not, under any circumstances, use Schedule I drugs and be qualified to drive a CMV. This change aligns the language with that used by the Drug Enforcement Agency ("DEA") in its regulations. The final rule now cites to 21 CFR part 1308, making it clear that the rule applies to the drugs and substances on the DEA’s controlled substance schedules.

The prior rule did not differentiate between Schedule I and non-Schedule I drugs for purposes of the prescription exception, so the Agency amended §391.41 to clarify that the exception that allows a CMV driver to use a substance or drug if it is prescribed by a licensed medical practitioner, applies only to non-Schedule I prescribed substances, amphetamines, narcotics, or other habit-forming drugs.

Secondly, the FMCSA amends §§382.201 and 382.215 because it found the use of the term "actual knowledge" throughout certain sections of the rule was incorrect. The words "actual knowledge" have been replaced with the word "knowledge," clarifying that the relevant prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct.

Lastly, prior to this final rule, §382.211 only prohibited drivers from refusing to submit to post-accident, random, reasonable suspicion, or follow-up drug or alcohol tests. The final rule amends this section to include pre-employment and return-to-duty testing as additional provisions. The final rule makes the regulation consistent with DOT-wide drug and alcohol testing rules.

In addition to the changes in terminology already mentioned, the final rule includes the following additional changes:

• The term "controlled substance" has been replaced by the words "drug or substance" in §§382.213 and 391.41(b)(12);
• The language in §§382.213 and 391.41(b)(12)(ii) that references non-Schedule I drugs or substances has been replaced with the phrase, "that is identified in the other Schedules in 21 CFR part 1308;"
• The phrase "pursuant to the instructions of" has been eliminated and the words "prescribed by" are now used; and
• The words on pages 4 and 8 of the Instructions to the Medical Examiner have been updated. More specifically, the form now states "If a driver uses an amphetamine, a narcotic or any other habit-forming drug, it may be cause for the driver to be found medically unqualified. If a driver uses a Schedule I drug or substance, it will be cause for the driver to be found medically unqualified." The words Schedule I drug or other substance have been removed from the medical examiner instructions.

Employers must advise drivers of the final rule change, and medical examiners will need to familiarize themselves with the Schedule I and non-Schedule I drug lists, so that they are up-to-date with the changes as well.