§382.413 Release of Alcohol and Controlled Substances Test Information by Previous Employers

Question 1: What is to be done if a previous employer does not make the records available in spite of the employer's request along with the driver's written consent?

Guidance: Employers must make a reasonable, good faith effort to obtain the information. If a previous employer refuses, in violation of §382.405, to release the information pursuant to the new employer's and driver's request, the new employer should note the attempt to obtain the information and place the note with the driver's other testing information (59 FR 7501, February 14, 1994).

Question 2: Within 14 days of first using a driver to perform safety-sensitive functions, an employer discovers that a driver had a positive controlled substances and/or 0.04 alcohol concentration test result within the previous two years. No records are discovered that the driver was evaluated by an SAP and has been released by an SAP for return to work. The employer removes the driver immediately from the performance of safety-sensitive duties. Is there a violation of the regulations?

Guidance: Based on the scenario as presented, only the driver is in violation of the rules.

Question 3: Must an employer investigate a driver's alcohol and drug testing background prior to January 1, 1995?

Guidance: No. The first implementation date of the part 382 testing programs was January 1, 1995. §382.413 requires subsequent employers to obtain information retained by previous employers that the previous employers generated under a part 382 testing program. Since no employer was allowed to conduct any type of alcohol or drug test under the authority of part 382 prior to January 1, 1995, no tests conducted prior to 1995 are required to be obtained under §382.413. An employer may, however, under its own authority, request that a driver who was subject to part 391 drug testing provide prior testing information.

Question 4: Must a motor carrier respond to a third-party administrator's request (as directed by the specific, written consent of the driver authorizing release of the information on behalf of an entity such as a motor carrier) to release driver information that is contained in records required to be maintained under §382.401?

Guidance: Yes. However, the third-party administrator must comply with the conditions established concerning confidentiality, test results, and record keeping as stipulated in the "Notice: Guidance on the Role of Consortia and Third-Party Administrators (C/TPA) in DOT Drug and Alcohol Testing Programs" published on July 25, 1995, in Volume 60, No. 142, in the Federal Register. Motor carriers must comply completely with §382.413 and 382.405 as well as any applicable regulatory guidance. Please note that written consent must be obtained from the employee each time part 382 information is provided to a C/ TPA, that the consent must be specific to the individual or entity to whom information is being provided, and that blanket or non-specific consents to release information are not allowed.