C.F.R. » Title 49 » PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS › Subpart B—Employer Responsibilities

49 C.F.R. § 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?

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(a)(1) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraphs (b) through (j) 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 transferring 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.

(2) If you are an employer regulated by FMCSA, you must comply with the requirements of this section by using the FMCSA's Drug and Alcohol Clearinghouse in accordance with 49 CFR 382.71(a). In addition, you must continue to comply with the requirements of this § 40.25 when checking an employee's testing history with employers regulated by a DOT operating administration other than FMCSA.

(3) If you are an employer regulated by FMCSA, with a prospective employee subject to drug and alcohol testing with a DOT agency other than FMCSA, you must continue to request the information about the employee listed in paragraphs (b) through (j) of this section. For example, if you are an employer regulated by both FMCSA and PHMSA, and you are hiring an employee to perform functions regulated by both DOT agencies, then you must query FMCSA's Clearinghouse to satisfy FMCSA's requirements and you must request the information listed in paragraphs (b) through (j) of this section to satisfy PHMSA's requirements.

(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:

(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including verified adulterated or substituted drug test results);

(4) Other violations of DOT agency drug and alcohol testing regulations; and

(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).

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023]
Notes of Decisions
Cited in 28 cases (2 in the last 5 years), 1993–2024 · leading case: Edgerton v. State Pers. Bd., 0 Cal. Daily Op. Serv. 8104 (Cal. Ct. App. 2000).
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Edgerton v. State Pers. Bd., 0 Cal. Daily Op. Serv. 8104 (Cal. Ct. App. 2000). · cites it 6× “” ( 49 C.F.R. § 40.25 (k) (1999).) *1357 Here, the trial court found that “although the MRO certified chain of custody as ‘properly completed,’ he reviewed no chain of custody documentation (as prescribed by 49 C.”
Robin Willie Turner v. Hirschbach Motor Lines, 854 F.3d 926 (7th Cir. 2017). “See 49 C.F.R. §§ 40.25 , 40.345, 40.349. Turner then filed this suit against Hirschbach under Title VII of the Civil Rights Act of 1964, 42 U.”
Drake v. Lab'y Corp. of Am. Holdings, 290 F. Supp. 2d 352 (E.D.N.Y 2003). · cites it 2× “(citing 49 C.F.R. § 40.25 (f)(22)(ii)(1998)). Consequently, the court concluded that it was “compelled to read [the regulatory preemptive language ‘covering the subject matter’] as too narrow to preempt state common law negligence claims, because of the coequal regulation…”
Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (6th Cir. 2000). · cites it 4× “This Court holds that the district court properly analyzed Plaintiffs claim and properly concluded that an im *308 plied private cause of action does not exist under 49 C.F.R. § 40.25 or FOTETA. The regulation upon which Plaintiff relies reads in pertinent part: The employee may…”
English v. Talladega Cnty. Bd. of Educ., 938 F. Supp. 775 (N.D. Ala. 1996). · cites it 5× “49 C.F.R. § 40.25 (b, c, e, f(7)). The parties agree that the regulations required the Board’s tests to be conducted using the “split sample” method, see 49 C.”
McIntyre v. Seminole Cnty. Sch. Bd., 779 So. 2d 639 (Fla. 5th DCA 2001). · cites it 2× “See 49 C.F.R. §§ 40.25 ; 40.29; 40.3; Fla. Stat.”
Charles v. Abate, Jr. v. S. Pac. Transp. Co., 993 F.2d 107 (5th Cir. 1993). “49 C.F.R. § 40.25 . 7 . Mr. Bourg voluntarily dismissed his claims.”
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). · cites it 12× “Under the applicable regulations, employees selected for random testing were required to provide a urine specimen to a designated “collection site person,” 49 CFR § 40.25 (f) (2000), who shipped the specimen to a laboratory for testing, 49 CFR § *297 40.”
Southwood Door Co. v. Burton, 847 So. 2d 833 (Miss. 2003). · cites it 2× “49 C.F.R. § 40.25 . [1] After the employee produces a *839 specimen, the collector takes it and, while in the employee's presence, pours at least 30 mL from the collection container to another bottle which will be the primary specimen and pours at least 15 mL into another bottle…”
Thomas Ostrowski v. Con-Way Freight Inc, 543 F. App'x 128 (3rd Cir. 2013). “, 49 C.F.R. § 40.25 . Pursuant to these polices, Conway trained Ostrowski on the company’s prohibitions regarding alcohol and drugs and its Employee Assistance Program.”
Michael Chapman v. Lab One, 390 F.3d 620 (8th Cir. 2004). · cites it 2× “40, which by then included an identical anti-waiver provision at 49 C.F.R. § 40.25 (f)(22)(ii) (1989). 54 Fed.”
David M. Lyons & United Transp. Union v. Norfolk & W. Ry. Co., 163 F.3d 466 (7th Cir. 1999). “49 C.F.R. § 40.25 (f) (10)(iv) (1995). Again, the parties dispute what happened next.”
Show all 28 citing cases →
— 49 C.F.R. § 40.25(f) — 1 case
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). “Under the applicable regulations, employees selected for random testing were required to provide a urine specimen to a designated “collection site person,” 49 CFR § 40.25 (f) (2000), who shipped the specimen to a laboratory for testing, 49 CFR § *297 40.”
— 49 C.F.R. § 40.25(f)(10)(iv)(A) — 1 case
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). “Under the applicable regulations, employees selected for random testing were required to provide a urine specimen to a designated “collection site person,” 49 CFR § 40.25 (f) (2000), who shipped the specimen to a laboratory for testing, 49 CFR § *297 40.”
— 49 C.F.R. § 40.25(f)(iv)(A)(3) — 1 case
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). “Under the applicable regulations, employees selected for random testing were required to provide a urine specimen to a designated “collection site person,” 49 CFR § 40.25 (f) (2000), who shipped the specimen to a laboratory for testing, 49 CFR § *297 40.”
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