... FMCSA: When to Conduct Pre-employment Testing versus When Not to Conduct Pre-employment Drug Testing
There is an exception for pre-employment testing under FMCSA regulations, it is not easy to comply with this exception.
An area of great concern to many trucking companies is when or how to conduct pre-employment drug or alcohol testing. Why this is an issue is the turnover rate of personnel that hold a CDL that float in and out of the transportation industry and more specifically the trucking industry where a CDL is required. It should be noted that there is a large paperwork burden for verification and for record keeping.
The testing regulations issued by FMCSA (formerly FHWA) have seen some changes over the years since they were first issued November 21, 1988. Because of these changes, some confusion has arisen over the implementation and interpretation of these regulations and accompanying policy guidance.
The basic requirement is for a CDL holder to take and pass a drug test in accordance with 49 CFR part 40 prior to operating a commercial vehicle on a public road. There are requirements in place for an employer to exempt an employee from taking a drug test.
If the following requirement is met, then the employer does not have to require the individual to take and pass a drug test.
- The applicant must have participated in a controlled substances testing program with testing that meets the requirements of the DOT regulations. There are qualifiers that need to be met in order to meet this exemption. The qualifiers are:
- Was tested for controlled substances with the past six months. An additional qualifier is that the six months counts from the date of application with the employer.
- Participated in a random controlled substances testing program for the previous 12 months, again, the time starts from the date of application with the employer.
- The other requirement is the hiring employer will ensure that no prior employer of the driver has any records of any testing violations by FMCSA or any other DOT modal agency within the previous six months.
If the employer exercises the requirement as stated in #1 given above, there are additional requirements to be completed by the employer. They are:
- 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:
- Name(s) and address(es) of the program(s);
- Verification that the driver participates or participated in the program(s);
- Verification that the program(s) conforms to part 40 of this title;
- 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;
- The date the driver was last tested for controlled substances; and
- The results of any tests taken within the previous six months and any other violations of subpart B of this part.
It should be noted that an employer who uses a driver without employing said driver more than once a year, must obtain the above information at least once every 6 months. These records are to be maintained in accordance with 49 CFR part 382.401: Retention of Records.
If the above verification cannot be done, then the employer is required to conduct a pre-employment drug test.
The next article will address some of the policy issues and alcohol testing.
Robert Schoening is well renowned for his knowledge and influence in the drug-testing arena. Robert is currently a consultant for Workplace Drug Testing and Drug Abuse Prevention Programs. Robert has served on the Board of Directors of the Substance Abuse Program Administrators Association (SAPAA) as well as chairing the Governmental and Legislative Affairs committee. He was one of the first individuals to be recognized as an expert in the Drug and Alcohol testing industry and to receive designation as a Certified Substance Abuse Program Administrator (1996).