[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2006]
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

[[Page 639]]

section written consent for the release 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).