Frequently Asked Questions
Regard Substance Abuse Testing

U.S. Supreme Court Upholds Federal Government Power to
Prohibit “Medical Marijuana” Use Under State Law

The U.S. Supreme Court has upheld the power of the federal government to seize and destroy “medical marijuana,” i.e., marijuana being grown domestically for personal and medicinal use for seriously ill patients, as a valid exercise of the government’s Commerce Clause authority under the U.S. Constitution. Gonzalez v. Raich, No. 03-1454, (U.S. Sup. Ct., June 6, 2005).

Under the Federal Controlled Substances Act, marijuana is an illegal drug that may not be used for medical purposes under any circumstances. At least nine states, however, have enacted laws permitting the use of marijuana for medical purposes. For example, California’s Compassionate Use Act of 1996 permits “seriously ill” state residents to obtain and use marijuana for medicinal purposes.

Question: I am an “Owner-Operator” and have been contacted by the MRO that I tested Positive for Marijuana. I have a prescription for “Medical Marijuana” due to the pain from a previous back injury, but the MRO would not accept this as a valid prescription.

Answer: Under the DOT FMCSA CFR 40 Regulations, Marijuana is one of the five prohibited drugs. The DOT Regulation falls under Federal jurisdiction and therefore supersedes State laws. Bear in mind the regulations were implemented with public safety in mind.

Pre-Employment Testing & Driver Background Checks?
Question: I am hiring a driver that has been in a testing program with their past employer, do I need to pre-employment test him?

Answer: There are a few different circumstances as to the requirements for pre-employment testing:

Subpart C - Tests Required

§ 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
(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.
(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. (Reference to Seasonal or Part Time Drivers)
(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. (Reference to Pre-Employment Alcohol Testing)
(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.

Driver Background Check
Question:I have requested the employee’s past history information from the driver’s previous employer but they will not respond to my request. Now what should I do?

Answer: The key answer to this question is as stated in §382.301(b)(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.

Due to the lack of information from a previous employer, a perspective employer can not ensure that they would be able to exercise the exception and therefore they should require the driver to be pre-employment drug tested. As stated in the requirements outlined above §40.25(d), (h) & (i), there are certain requirements for the past employer to comply. Under these circumstances if a previous employer does not respond to your requests you have some recourse available by contacting your local DOT Motor Carrier Division or DOT in Washington D.C to file a formal complaint. Go to: www.fmcsa.dot.gov/ or 1-800-832-5660

Question: §40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?

Answer: (a) Yes, as an employer, you must, after obtaining an employee’s written consent, request the information about the employee listed in paragraph (b) of this section. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time ( i.e. , a new hire, an employee transfers into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions.

(b) You must request the information listed in this paragraph (b) from DOT-regulated employers who have employed the employee during any period during the two years before the date of the employee’s application or transfer: (Note: §391.23 requires number of years for interstate drivers)

(b)(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(b)(2) Verified positive drug tests;
(b)(3) Refusals to be tested (including verified adulterated or substituted drug test results);
(b)(4) Other violations of DOT agency drug and alcohol testing regulations; and
(b)(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee’s successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-do-duty process ( e.g. , an employer who did not hire an employee who tested positive on a pre-employment test), you must seek to obtain this information from the employee.
(c) The information obtained from a previous employer includes any drug or alcohol test information obtained from previous employers under this section or other applicable DOT agency regulations.
(d) If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, you must obtain and review the information as soon as possible. However, you must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions, unless you have obtained or made and documented a good faith effort to obtain this information.
(e) If you obtain information that the employee has violated a DOT agency drug and alcohol regulation, you must not use the employee to perform safety-sensitive functions unless you also obtain information that the employee has subsequently complied with the return-to-duty requirements of Subpart O of this part and DOT agency drug and alcohol regulations.
(f) You must provide to each of the employers from whom you request information under paragraph (b) of this section written consent for the release of the information cited in paragraph (a) of this section.
(g) The release of information under this section must be in any written form (e.g., fax, e-mail, letter) that ensures confidentiality. As the previous employer, you must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided.
(h) If you are an employer from whom information is requested under paragraph (b) of this section, you must, after reviewing the employee’s specific, written consent, immediately release the requested information to the employer making the inquiry.
(i) As the employer requesting the information required under this section, you must maintain a written, confidential record of the information you obtain or of the good faith efforts you made to obtain the information. You must retain this information for three years from the date of the employee’s first performance of safety-sensitive duties for you.
(j) As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section).