Privacy Issues in the Workplace

B. DOT-R EGULATED D RUG AND A LCOHOL T ESTING Every employer in the United States who employs drivers of “commercial motor vehicles” or who operates a transit system in an urbanized area must be in compliance with the United States Department of Transportation regulations (implementing the Federal Omnibus Transportation Employee Testing Act of 1991). These regulations require that the employer adopt a drug and alcohol testing policy, in accordance with the regulations, for employees in “safety-sensitive functions,” e.g., employees who drive vehicles with a gross vehicle weight of at least 26,001 pounds, or vehicles designed to transport 16 or more passengers, or vehicles which transport hazardous materials. Most relevant to the privacy issues discussed in this workbook is the regulation that requires an employer to request particular drug and alcohol testing records that were made during the two years prior to the date that a new applicant or a current employee first requests transfer to a safety sensitive job. 287 The following is a summary of the requirements of this regulation. 1. R ECORDS C HECK R EQUIREMENT The DOT regulation codified at Title 49 Code of Federal Regulations section 40.25 requires an employer to request particular drug and alcohol testing records that were made during the two years prior to the date of: 1) a new applicant’s application for a safety-sensitive job; or 2) a request of a current employee to transfer to his or her first safety-sensitive job with that employer. 288 If the applicant or employee refuses to provide a written consent for this information, the employer cannot permit that person to perform safety-sensitive functions. 289 2. T HE I NFORMATION TO B E R ELEASED The particular information that the employer must request is: 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) 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-to-duty process (e.g., employer did not hire an employee who tested positive on a pre-employment test), the employer may obtain this information from the employee. 290 In addition, the information obtained from the previous employer also includes any drug or alcohol test information obtained from previous employers. 291

3. W HEN THE I NFORMATION M UST B E O BTAINED

The information must be obtained, “if feasible,” before the employee first performs safety-sensitive functions. If that is not feasible, the employer must obtain the information as soon as possible. In any event, the employer 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 the employer has received the information or has made a good faith effort to obtain the information. 292

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 93