Drivers

Must You Provide Only Positive D&A Tests to Prospective Employers? Negative!

December 2015, TruckingInfo.com - Department

by Betty Weiland

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In the world of safety regulations, the language used by federal agencies can often be confusing to those working on the frontlines of the trucking industry.

For example, when a motor carrier receives an inquiry into a current or former driver’s drug and alcohol testing history, what specifically is the company required to release?

Overlapping safety regulations

Let’s begin by looking at an overview of the inquiry itself. The requirement to contact former employers for which the driver was subject to U.S. Department of Transportation (DOT) testing appears in Sections 391.23(e) and 382.413. Section 382.413 cross-references Section 40.25, which is applicable to all modes under the DOT umbrella.

Because Section 391.23 (i.e., Safety Performance History (SPH)) asks questions similar to those in Section 40.25(b), the Federal Motor Carrier Safety Administration (FMCSA) allows a motor carrier to use one background check to satisfy both safety requirements rather than duplicate efforts. The primary difference between the two sections is the amount of history provided. Part 391 requires the release of three years’ worth of information, while Part 40 is two years. FMCSA has indicated that motor carriers must go with its more stringent 3-year window.

Next, in order to release the confidential testing information, the driver must sign a specific written consent in accordance with Section 40.321(b) that must identify who is requesting the information (prospective employer’s name), exact questions (the list appearing in the regulation), and from whom the information is being solicited (former employer’s name). It cannot be a blanket release. The former employer must respond to the inquiry within 30 days of receiving it, even if there is no information to provide.

If the request does not clearly identify specific documents to release, you may need another specific written consent in the event the new employer wants copies of records such as test results and Substance Abuse Professional (SAP) reports.

What information must you release?

According to Section 391.23(e), the questions only apply to tests performed under DOT authority (49 CFR Part 40). You will specifically be asked whether the driver violated any of the “prohibitions” under Subpart B of Part 382 while under your program during the previous three years. You would not provide non-DOT testing information since there are no DOT ramifications for refusing or testing positive under company policy.

Many mistakenly believe they only report positive results, but the list of prohibitions in Sections 382.201 through 382.215 reveals a number of other situations that must be reported as well.

Yes, prohibitions include testing positive on any DOT-required test — even a pre-employment. For drug testing, it is a result within the thresholds provided in Section 40.87 in the DOT 5-panel test. For alcohol, it is an alcohol concentration of .04 or greater. Prohibitions also include refusals to test. Refusing to test includes a variety of scenarios as summarized below:

  • Not going to, or showing up late to, the collection site when instructed.
  • Not cooperating with the collection process.
  • Leaving the collection site before finishing the test.
  • Failure to provide an adequate urine specimen without an acceptable medical explanation.
  • Failure to provide an adequate amount of saliva or breath for an alcohol test without an acceptable medical explanation.
  • An adulterated or substituted specimen.

Consuming alcohol within 8 hours following an accident without having had a DOT post-accident alcohol test is also prohibited, as is consuming alcohol within 4 hours of coming on duty. If an employer has “actual knowledge” of this, it is a violation requiring the SAP evaluation, treatment, and follow-up testing program.

That brings up another interesting topic — actual knowledge. If a motor carrier has actual knowledge of any of the prohibitions, this must be reported to future employers.

If a driver has violated any of the prohibitions, he or she must complete the entire DOT return-to-duty process in order to be free of any future obligations. It carries over to future employers and through breaks in employment.

When a driver has violated the testing rules, you must answer questions on whether he or she completed an SAP program. If not, you must indicate where the process left off. If the driver was terminated and you just don’t know if the process was started or completed, you must communicate that as well. If the driver successfully completed the SAP program and remained in your employment, you must also indicate if the driver had any subsequent positive tests or refusals to test.

There may be occasions when information in a driver’s records reveals a violation outside of the motor carrier’s program obtained through a SPH inquiry. According to official USDOT regulatory guidance to Section 40.25, when an employer receives an inquiry about a former employee, it must provide all the information in its possession concerning the employee’s DOT drug and alcohol tests that occurred in the requested time period preceding the inquiry.

Betty Weiland is the senior editorial manager of transportation content at J.J. Keller & Associates.

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