Current through Register Vol. 48, No. 9, September 27, 2024
(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). 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) if:
(1) The driver has participated in a
controlled substances testing program that meets the requirements of 38-382
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 38-382 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) shall contact the
controlled substances testing program(s) in which the driver participates or
participated and shall obtain and retain from the testing pro-gram(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. Verification that the driver is qualified
under the rules of 38-382, 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 38-382.
(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) at least once every six months. The records
prepared under this paragraph shall be maintained in accordance with Regulation
Regulation
38-382.401.
If the employer cannot verify that the driver is participating in a controlled
substances testing program in accordance with 38-382 and part 40 of the Federal
Motor Carrier Safety Administration's procedures for transportation workplace
drug and alcohol testing programs, the employer shall conduct a pre-employment
controlled substances test.
(d) An employer may, but is not required to.
conduct pre-employment alcohol testing under 38-382. 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). J
(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.
(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.
