§382.301 Pre-Employment Testing

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 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, or was not covered by a program, or was not covered for more than 30 days, then a pre-employment test would be required.

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) and (d), 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 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 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? [Editor’s Note]

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. [Editor’s Note]

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? [Editor’s Note]

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. [Editor’s Note]