[Code of Federal Regulations]

[Title 49, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR382.301]



[Page 166-167]

 

                        TITLE 49--TRANSPORTATION

 

                      DEPARTMENT OF TRANSPORTATION

 

PART 382_CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING--Table of 

Contents

 

                        Subpart C_Tests Required

 

Sec. 382.301  Pre-employment testing.





    (a) Prior to the first time a driver performs safety-sensitive 

functions for an employer, the driver shall undergo testing for 

controlled substances as a condition prior to being used, unless the 

employer uses the exception in paragraph (b) of this section. No 

employer shall allow a driver, who the employer intends to hire or use, 

to perform safety-sensitive functions unless the employer has received a 

controlled substances test result from the MRO or C/TPA indicating a 

verified negative test result for that driver.

    (b) An employer is not required to administer a controlled 

substances test required by paragraph (a) of this section if:

    (1) The driver has participated in a controlled substances testing 

program that meets the requirements of this part within the previous 30 

days; and

    (2) While participating in that program, either:

    (i) Was tested for controlled substances within the past 6 months 

(from the date of application with the employer), or

    (ii) Participated in the random controlled substances testing 

program for the previous 12 months (from the date of application with 

the employer); and

    (3) The employer ensures that no prior employer of the driver of 

whom the employer has knowledge has records of a violation of this part 

or the controlled substances use rule of another DOT agency within the 

previous six months.

    (c)(1) An employer who exercises the exception in paragraph (b) of 

this section shall contact the controlled substances testing program(s) 

in which the driver participates or participated and shall obtain and 

retain from the testing program(s) the following information:

    (i) Name(s) and address(es) of the program(s).

    (ii) Verification that the driver participates or participated in 

the program(s).

    (iii) Verification that the program(s) conforms to part 40 of this 

title.

    (iv) Verification that the driver is qualified under the rules of 

this part, including that the driver has not refused to be tested for 

controlled substances.

    (v) The date the driver was last tested for controlled substances.

    (vi) The results of any tests taken within the previous six months 

and any other violations of subpart B of this part.

    (2) An employer who uses, but does not employ a driver more than 

once a year to operate commercial motor vehicles must obtain the 

information in paragraph (c)(1) of this section at least once every six 

months. The records prepared under this paragraph shall be maintained in 

accordance with Sec. 382.401. If the employer cannot verify that the 

driver is participating in a controlled substances testing program in 

accordance with this part and part 40 of this title, the employer shall 

conduct a pre-employment controlled substances test.

    (d) An employer may, but is not required to, conduct pre-employment 

alcohol testing under this part. If an employer chooses to conduct pre-

employment alcohol testing, it must comply with the following 

requirements:

    (1) It must conduct a pre-employment alcohol test before the first 

performance of safety-sensitive functions by every covered employee 

(whether a new employee or someone who has transferred to a position 

involving the performance of safety-sensitive functions).

    (2) It must treat all safety-sensitive employees performing safety-

sensitive



[[Page 167]]



functions the same for the purpose of pre-employment alcohol testing 

(i.e., it must not test some covered employees and not others).

    (3) It must conduct the pre-employment tests after making a 

contingent offer of employment or transfer, subject to the employee 

passing the pre-employment alcohol test.

    (4) It must conduct all pre-employment alcohol tests using the 

alcohol testing procedures of 49 CFR part 40 of this title.

    (5) It must not allow a covered employee to begin performing safety-

sensitive functions unless the result of the employee's test indicates 

an alcohol concentration of less than 0.04.