Employer's responsibilty under DOT Rule 49 CFR part 40 section 40.25

Today we will cover the employer’s responsibilities in regards to the Federal Motor Carrier Safety Administration (FMSCA) regulations DOT rule 49 CFR part 40 section 40.25.  This regulation covers DOT commercial drivers that you may hire to transport your goods either in state or over the road.  This regulation states that is an employer’s responsibility to check on the records of employees it intends to hire and perform safety-sensitive duties. 

 

“Ok so I have the responsibility of getting the records from the other company.  I can do that but can’t I just ask them and cover myself that way?”

Well during the hiring process you must ask the employee whether they have tested positive or refused to test on any drug or alcohol test either as a pre-employment requirement or a random test even if they didn’t obtain the job.  This is to cover the last 2 years for any safety-sensitive transportation work as required by the DOT regulation.  If they do admit to any of these, you cannot use them until they have completed a return-to-duty process.  But as we all know not all potential employees will tell you everything.

“I hear it all the time that they always clean.  So I guess then as a backup I should get records just to help cover me for the future. But what do need to request from his previous employers?”

Well you need to submit a written consent to the previous employer requesting the following information: any alcohol test at or above 0.04, any verified positive drug test, any refusals to be tested including adulterated or substituted drug test results, and other violations of the DOT drug and alcohol testing regulations.  You should also request documentation of the employee’s successful completion of DOT return-to-duty requirements.  It is also your duty to note each request of information from employers in writing, including all good faith efforts, maintaining confidentiality at each step as required by DOT.  This information you have either obtained, or lack thereof, must be retained for 3 years from the date of the employee’s first performance of safety-sensitive duties for your company.

“Right, now that I have that information what next?”

Well before your new employee performs any safety-sensitive functions, you must review their information provided by their previous employers.  If any of the information you’ve obtained has violated the DOT regulations, that employee can’t perform any job function until a return-to-duty requirement has been met.

“What is this return-to-duty requirement you keep mentioning?  I’m also not really sure I understand what you mean by safety-sensitive duties.”

Ok let’s look at those two things starting with the safety-sensitive duties.  Safety-sensitive duties include but not limited to, time spent driving commercial vehicles, loading or unloading, and waiting to load or unload.  The DOT defines safety-sensitive functions as the time a driver begins to work, or readiness to work, until the time they are relieved from all responsibility for performing work.  So in essence a safety-sensitive duty is anytime the employee is on the clock and working.

Now return-to-duty covers an employee who may have failed a drug or alcohol test and gives them the chance to “redeem” themselves in the eyes of the DOT.  The employee meets with a substance abuse professional (SAP) who makes recommendations for treatment and reports that to the employer.  The employee will go through the treatment or education process and is monitored by the SAP.  If the SAP determines the employee has complied or not, they notify the employer who has the final say if they want to continue the employment.  The employer is not obligated to take them back even if they stay within the program guidelines.

“Ok that makes sense now.  So safety-sensitive is the time on the job and if they fail a drug or alcohol test they can’t be on the job until they complete a program.  So if I decide not to take them back and they look for a job elsewhere, I just give the new potential employer all that information.”

Right!  As soon as you receive a request from someone, review it to make sure the employee has given their written consent for information to be released, and when you send it out make sure all confidentiality is kept.  Now of course this is not the full regulation by any means just an overview to give you a general idea of what to be on the lookout for hiring potential employees and we recommend that you review the full regulation yourself.