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§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 |
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(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. |
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| (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. |
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(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 §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. |
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(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 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. |
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§382.301 — DOT Regulatory Guidance Question 1: What is meant by the phrase, "an employer who uses, but does not employ, a driver * * * "? Describe a situation to which the phrase would apply. Guidance: This exception was contained in the original drug testing rules and was generally applied to "trip-lease" drivers involved in interstate commerce. A trip-lease driver is generally a driver employed by one motor carrier, but who is temporarily leased to another motor carrier for one or more trips generally for a time period less than 30 days. The phrase would also apply to volunteer organizations that use loaned drivers.
Question 2: Must school bus drivers be pre-employment tested after they return to work after summer vacation in each year in which they do not drive for 30 consecutive days? Guidance: A school bus driver whom the employer expects to return to duty the next school year does not have to be pre-employment tested so long as the driver has remained in the random selection pool over the summer. There is deemed to be no break in employment if the driver is expected to return in the fall. On the other hand, if the driver is taken out of all U.S. Department of Transportation (DOT) random pools for more than 30 days, the exception to pre-employment drug testing in §382.301 would be unavailable and a drug test would have to be administered after the summer vacation.
Question 3: Is a pre-employment controlled substances test required if a driver returns to a previous employer after his/her employment had been terminated? Guidance: Yes. A controlled substances test must be administered any time employment has been terminated for more than 30 days and the exceptions under §382.301(c) were not met.
Question 4: Must all drivers who do not work for an extended period of time (such as layoffs over the winter or summer months) be pre-employment drug tested each season when they return to work? Guidance: If the driver is considered to be an employee of the company during the extended (layoff) period, a pre-employment test would not be required so long as the driver has been included in the company's random testing program during the layoff period. However, if the driver was not considered to be an employee of the company at any point during the layoff period, or was not covered by a program, or was not covered for more than 30 days, then a pre-employment test would be required.
Question 5: What must an employer do to avail itself of the exceptions to pre-employment testing listed under §382.301(c)? Guidance: An employer must meet all requirements in §382.301(c) and (d), including maintaining all required documents. An employer must produce the required documents at the time of the Compliance Review for the exception to apply.
Question 6: May a Commercial Driver's License (CDL) driving skills test examiner conduct a driving skills test administered in accordance with 49 CFR part 383 before a person subject to part 382 is tested for alcohol and controlled substances? Guidance: Yes. A Commercial Driver's License (CDL) driving skills test examiner, including a third party CDL driving skills test examiner, may administer a driving skills test to a person subject to part 382 without first testing him/her for alcohol and controlled substances. The intent of the CDL driving skills test is to assess a person's ability to operate a commercial motor vehicle during an official government test of their driving skills. However, this guidance does not allow an employer (including a truck or bus driver training school) to use a person as a current company, lease, or student driver prior to obtaining a verified negative test result. An employer must obtain a verified negative controlled substance test result prior to dispatching a driver on his/her first trip.
Question 7: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. The driver no longer works for the employer where he/she tested positive. The driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-employment and one return-to-duty), or will one test suffice for both purposes? Guidance: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submitted to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the requirements of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day.
Question 8: May an employer conduct a road test administered in accordance with 49 CFR §391.31 prior to driver-applicant subject to 49 CFR §382 submits to a pre-employment controlled substances test? Guidance: Yes. An employer may administer a road test to a prospective driver subject to Part 382 without first testing him/her for controlled substances. The intent of the road test is to effectively evaluate the driver's ability to operate a commercial motor vehicle (CMV). This guidance does not allow the motor carrier to dispatch the prospective driver on his/her first trip prior to obtaining a verified negative test result.
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