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 and was not covered by another employer’s drug testing program, then a pre-employment test would be required. Consult 49 CFR 382.301(b) and (c) for further requirements.
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)(1) and (2), 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.
Question 9: Return-to-duty/Pre-employment Testing: What type of DOT tests must an employer provide in order to hire a driver who has completed the referral and evaluation process with a SAP, but still needs a return-to-duty test before the driver may perform a safety-sensitive function?
Guidance: An employer may give the driver a single DOT test that will meet both the requirements of §382.301 (pre-employment test) and §382.309 (return-to-duty test) if the employer would be required to conduct both tests on the same day. The single test must be characterized as a DOT return-to-duty test and conducted under direct observation. See 49 CFR 40.67(b). In other words, a DOT return-to-duty test will suffice for a DOT pre-employment test, but a DOT pre-employment test will not suffice for a DOT return-to-duty test. See §382.309, Question 1.
Question 10: Is a motor carrier required to administer a second DOT pre-employment drug test on a driver that received a verified negative test result on the initial pre-employment drug test, and remained employed with the motor carrier, but was not placed into the carrier’s DOT random testing pool?
Guidance: There is no regulatory requirement that an employer conduct a second pre-employment test on a driver, where there was no break in employment, if the driver was not placed into the DOT random testing pool. See 49 CFR 382.301(a). However, an employer may be subject to civil penalties for failing to immediately place the driver into the random pool. See 49 CFR 382.305.
Nothing in the DOT drug and alcohol regulations prevents an employer from conducting a non-DOT drug and alcohol test in accordance with company policy and state law so long as the requirements of 49 CFR 40.13 are met.
Question 11: The Custody and Control Form for a pre-employment DOT test mistakenly indicated that the test was conducted pursuant to the Federal Railroad Administration’s (FRA) authority. The form should have indicated that the employee was a CDL-driver, being tested pursuant to FMCSA authority. Does this procedural error require the employee to have another pre-employment drug/alcohol test?
Guidance: No, the driver does not need to be retested. So long as the driver was tested in accordance with Part 40 and the test did not contain any flaws addressed in §40.201 or §40.203, or the error does not have a significant adverse effect on the rights of the employee to have a fair and accurate test, a new test is not needed. [§40.209(b)(1)]