Privacy Issues in the Workplace

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. 292 In addition, the information obtained from the previous employer also includes any drug or alcohol test information obtained from previous employers. 293 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. 294 4. C ONSEQUENCES OF P RIOR V IOLATIONS If the employer obtains information that the employee has violated a DOT agency drug and alcohol regulation, the employer must not allow the employee to perform safety-sensitive functions unless the information indicates that the employee has subsequently complied with the DOT return-to-duty requirements. 295 5. D UTIES OF R EQUESTING AND R ECEIVING E MPLOYERS The requesting employer has the duty to provide the prior employer with the employee’s written consent to release the information. 296 The employer who receives a written consent must review it and then “immediately release the requested information” to the employer making the inquiry. 297 The information may only be released in a manner that ensures confidentiality. 298 6. R ECORD -K EEPING An employer who releases information 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. 299 The employer requesting the information must maintain a written, confidential record of the information obtained or of its good faith efforts to obtain the information. 300 The employer must retain these records for three years from the date of the employee first performed safety-sensitive duties for that employer. 301 3. W HEN THE I NFORMATION M UST B E O BTAINED

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