- No. Certified mail is not required.
- The employer can make this inquiry through a variety of
means, including mail (certified or not), fax, telephone, or email.
- However, the employer must provide the former employer the
signed release or a faxed or scanned copy of the employee’s signed
release.
- The former employer must respond via a written response
(e.g., fax, letter, email) that ensures confidentiality.
- The employer should document an attempt or attempts to
contact and contacts with previous employers, no matter how they were made, so
that it can show a good faith effort to obtain the required information.
Question:
When a previous employer receives an inquiry from a new employer for drug and
alcohol testing information, does the previous employer provide information it
may have received from other employers in the past?
Answer:
- As an employer, when you receive an inquiry about a former
employee, you must provide all the information in your possession concerning
the employee’s DOT drug and alcohol tests that occurred in the two years
preceding the inquiry.
- This includes information you received about an employee from
a former employer (e.g., in response to the Federal Motor Carrier Safety
Administration’s pre-employment inquiry requirement).
- It is not a violation of Part 40 or DOT agency rules if you
provide, in addition, information about the employee’s DOT drug and alcohol
tests obtained from former employers that dates back more than two years
ago.
- If you are an employer regulated by the FAA, this does not
impact your requirements under the Pilot Record Act.
Question:
If an applicant admits to testing positive on or refusing to take a
pre-employment test within the past two years, must the applicant be held out
of safety-sensitive duties if he or she did not complete the return-to-duty
process (i.e., the SAP process)?
Answer:
- If the applicant admits that he or she had a positive or a
refusal to test result on a pre-employment test, the employer is not permitted
to use the applicant to perform safety-sensitive duties until and unless the
applicant documents successful completion of the return-to-duty process.
- This Part 40 requirement applies whether or not the
pre-employment positive or refusal occurred before, on, or after August 1,
2001.
- Should no proof exist that the return-to-duty process was
successfully complied with by the applicant, a current return-to-duty process
must occur before the individual can again perform safety-sensitive
functions.
Question:
When an employee leaves an employer for a period of time (but not exceeding two
years) and returns to that same employer, must the employer once again seek to
obtain information it may have received previously from other employers?
Answer:
- No. If the information received previously is still on file
with the employer, the employer need not seek to obtain the testing data
again.
- However, the employer must seek information from all other
employers for whom the employee performed safety-sensitive duties since the
employee last worked for the employer.
Question:
May the previous employer delay sending an employee’s drug and alcohol testing
information to the gaining employer pending payment for the cost of the
information?
Answer:
- No. Part 40 specifically requires that previous employers
immediately provide the gaining employer with the appropriate drug and alcohol
testing information.
- No one (i.e., previous employer, service agent [to include
C/TPA], employer information/data broker) may withhold this information from
the requesting employer pending payment for it.
Question:
Will FMCSA- and FAA-regulated employers complying with the drug and alcohol
information records check requirements contained in the Federal Motor Carrier
Safety Administration (FMCSA) regulation 49 CFR Part 391 and the Federal
Aviation Administration (FAA) Pilot Record Improvement Act be considered
compliant with 40.25?
Answer:
- Yes. Employers who are required by and who comply with the
FMCSA’s three-year requirement for obtaining and providing employee drug and
alcohol testing information are considered to have satisfied the two-year
requirement contained in 40.25.
- Likewise, employers who are required by and who comply with
the FAA’s five-year requirement for obtaining and providing employee drug and
alcohol testing information are considered to have satisfied the two-year
requirement contained in 40.25.
- These employers do not need to seek separately the 40.25
information if the employer adheres to the FMCSA and FAA regulations, as
appropriate, for obtaining an employee’s prior drug and alcohol testing
information.
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