Recalling drivers after a layoff

Scope

Motor carriers need to know how to handle a driver’s qualification file and pre-employment drug testing for a driver who returns after a layoff.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Driver’s qualification (DQ) file. Let’s look at the following scenarios as they relate to the DQ file:

• Temporary layoff. If the driver was told the layoff was temporary and to expect a call back, this is not seen as a break in employment if the driver was considered an employee during this interim. The driver was not “terminated.” A new DQ file does not have to be created. As long as the existing driver file is up-to-date, or brought up-to-date, before operating a commercial motor vehicle (CMV) again for you for the first time, there is no violation.
  • If a renewable item such as an annual Motor Vehicle Record (MVR), annual review, or medical certificate lapsed during the layoff, you will need to create the document before the driver operates the CMV. You may want to communicate — through a note in the file to the FMCSA — the dates of the layoff. This shows the driver did not violate the regulations by operating a CMV with an incomplete DQ file. The violation actually occurs when the driver operates a CMV with missing or incomplete documents. As time passes and those renewable items within that time frame are purged (after three years), your explanatory note may also be pulled from the file.

• Termination. If the driver is no longer considered an employee and the employer says the driver should seek other employment, this is considered a break in employment. A driver who is called back in this situation is a “rehire,” and is no different than someone who quits or is fired for other reasons and comes back. You would base everything in the DQ file on the rehire date, not the original hire date. The original DQ file is kept for three years from the “termination date” as if the driver never returned.
  • You may be able to use copies of the following items in the old DQ file to place in the new DQ file:
    • Medical certificate, if current.
    • Road test/certificate, if completed less than three years ago (see 391.33(a)(2)).
    • Safety performance histories, if the information pertains to the three years that precede the rehire date and the inquiries sent to previous employers were in compliance with the current version of 391.23. In other words, carriers don’t have to redo compliant previous employer checks they’ve already completed, as long as those checks are compliant with current rules.
  • You will need to create some documents, including:
    • A new driver application completed using the rehire date as the point of reference. All employment while the driver was away must be listed, as well as dates previously employed by the motor carrier and anyone else who may fall within the three years from the rehire date. Violations, accidents, residences, etc., must be based on the rehire date. If the driver was not employed during the absence, you may want him or her to list the period as unemployed.
    • A motor vehicle report to coincide with the rehire date, to comply with 391.23. CDL drivers must have a copy of the CDLIS MVR more than 15 days after the most recent DOT medical exam.
    • Safety performance histories, requested on any employment during the absence. Technically, as both former and present employer, you would have to document Safety Performance History data on the driver for the time the individual worked for you earlier. It may seem redundant, but you are not excepted from documenting the Safety Performance History. It demonstrates to the FMCSA that you are aware of the driver’s prior safety history with you when making a rehire decision.

DOT pre-employment drug testing. The criterion for a new DOT pre-employment drug screen is based on participation in a DOT drug and alcohol testing program.

• If you removed the driver from your program and more than 30 days elapsed, you must send the driver for the test regardless of the employment status (termination vs. temporary layoff). You must wait for the verified negative result prior to using the driver again for the first time in a safety-sensitive function.
  • If the driver was in someone else’s DOT pool during the layoff, you could attempt to obtain the records necessary to show the driver meets the DOT pre-employment exception in 382.301(b).
    • If you need the driver right away, this may not be the best option. You must have the former employer’s statement as prescribed in 382.301(c) in hand to show the driver meets the criteria in 382.301(b). This is considered the same as having a verified negative result.
  • If there was a “termination,” you need to ask the driver about previous DOT pre-employment drug screens in accordance with 40.25(j).
    • You also need to reissue the educational materials and DOT drug and alcohol policy in accordance with 382.601 and obtain a new signed receipt with a date that corresponds with the rehire date.
    • If the driver was removed from the random testing pool for any amount of time, the motor carrier must request a new CDL Drug and Alcohol Clearinghouse pre-employment query.
    • Any drug and alcohol papers from the previous employment must be retained as if the driver never returned, and purged in accordance with 40.333 and 382.401.
• If the driver appropriately remained in the random pool during the absence, a DOT pre-employment drug screen is not required and you do not have to reissue the educational materials and policy unless there were policy changes during the absence. You do not have to ask about DOT pre-employment testing under 40.25(j).
  • If the driver’s name is drawn during the layoff, you have a couple of options to consider:
    • If the driver IS expected to return before the end of the testing cycle, save the notification and keep it secret. You will send the driver upon return, providing it is within the testing cycle.
    • If the driver is NOT expected to return before the end of the testing cycle, you may use an alternate drawn using a scientific method. You would document the reason why the original driver was not sent (i.e., layoff).
      • If the driver does not return to work before the end of the testing cycle, you would document the reason why the test was not performed (i.e., layoff) and compensate for the missed test later in the year if you need a result to meet your numbers for the year.
      • You may create an off-duty notification policy for drug testing. This would involve making sure drivers knows they may be called for a drug screen during a layoff and would be expected to go once notified. Unfortunately, such a policy may set drivers up for failure if they are physically unable to go for the test (e.g., no personal vehicle available, childcare issues, out of the area with cell phone, etc.). To refuse to go is a refusal to test, no matter the circumstances.