[Code of Federal Regulations]

[Title 49, Volume 1]

[Revised as of October 1, 2005]

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

[CITE: 49CFR40.25]



[Page 638-639]

 

                        TITLE 49--TRANSPORTATION

 

          Subtitle A--Office of the Secretary of Transportation

 

PART 40_PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING 

PROGRAMS--Table of Contents

 

                   Subpart B_Employer Responsibilities

 

Sec. 40.25  Must an employer check on the drug and alcohol testing 

record of employees it is intending to use to perform safety-sensitive 

duties?



    (a) Yes, as an employer, you must, after obtaining an employee's 

written consent, request the information about the employee listed in 

paragraph (b) of this section. This requirement applies only to 

employees seeking to begin performing safety-sensitive duties for you 

for the first time (i.e., a new hire, an employee transfers into a 

safety-sensitive position). If the employee refuses to provide this 

written consent, you must not permit the employee to perform safety-

sensitive functions.

    (b) You must request the information listed in this paragraph (b) 

from DOT-regulated employers who have employed the employee during any 

period during the two years before the date of the employee's 

application or transfer:

    (1) Alcohol tests with a result of 0.04 or higher alcohol 

concentration;

    (2) Verified positive drug tests;

    (3) Refusals to be tested (including verified adulterated or 

substituted drug test results);

    (4) Other violations of DOT agency drug and alcohol testing 

regulations; and

    (5) With respect to any employee who violated a DOT drug and alcohol 

regulation, documentation of the employee's successful completion of DOT 

return-to-duty requirements (including follow-up tests). If the previous 

employer does not have information about the return-do-duty process 

(e.g., an employer who did not hire an employee who tested positive on a 

pre-employment test), you must seek to obtain this information from the 

employee.

    (c) The information obtained from a previous employer includes any 

drug or alcohol test information obtained from previous employers under 

this section or other applicable DOT agency regulations.

    (d) If feasible, you must obtain and review this information before 

the employee first performs safety-sensitive functions. If this is not 

feasible, you must obtain and review the information as soon as 

possible. However, you must not permit the employee to perform safety-

sensitive functions after 30 days from the date on which the employee 

first performed safety-sensitive functions, unless you have obtained or 

made and documented a good faith effort to obtain this information.

    (e) If you obtain information that the employee has violated a DOT 

agency drug and alcohol regulation, you must not use the employee to 

perform safety-sensitive functions unless you also obtain information 

that the employee has subsequently complied with the return-to-duty 

requirements of Subpart O of this part and DOT agency drug and alcohol 

regulations.

    (f) You must provide to each of the employers from whom you request 

information under paragraph (b) of this section written consent for the 

release



[[Page 639]]



of the information cited in paragraph (a) of this section.

    (g) The release of information under this section must be in any 

written form (e.g., fax, e-mail, letter) that ensures confidentiality. 

As the previous employer, you must maintain a written record of the 

information released, including the date, the party to whom it was 

released, and a summary of the information provided.

    (h) If you are an employer from whom information is requested under 

paragraph (b) of this section, you must, after reviewing the employee's 

specific, written consent, immediately release the requested information 

to the employer making the inquiry.

    (i) As the employer requesting the information required under this 

section, you must maintain a written, confidential record of the 

information you obtain or of the good faith efforts you made to obtain 

the information. You must retain this information for three years from 

the date of the employee's first performance of safety-sensitive duties 

for you.

    (j) As the employer, you must also ask the employee whether he or 

she has tested positive, or refused to test, on any pre-employment drug 

or alcohol test administered by an employer to which the employee 

applied for, but did not obtain, safety-sensitive transportation work 

covered by DOT agency drug and alcohol testing rules during the past two 

years. If the employee admits that he or she had a positive test or a 

refusal to test, you must not use the employee to perform safety-

sensitive functions for you, until and unless the employee documents 

successful completion of the return-to-duty process (see paragraphs 

(b)(5) and (e) of this section).