REQUEST FOR DOT DRUG AND ALCOHOL TESTING INFORMATION
FROM PREVIOUS EMPLOYER
§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?
(a) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the
employee listed in paragraph (b) 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 transfers 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.
(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 (three for FMCSA) 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 safetysensitive 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 preemployment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain,
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safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two (three for
FMCSA) 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).
§40.25 – 9/1/01
QUESTION:
When an employer is inquiring about an applicant’s previous DOT drug and alcohol test results, is the employer required
to send the inquiry via certified mail?
ANSWER:
• No. Certified mail is not required.
• The employer can make this inquiry through a variety of means, including mail (certified or not), fax, telephone, or
email.
• However, the employer must provide the former employer the signed release or a faxed or scanned copy of the
employee’s signed release.
• The former employer must respond via a written response (e.g., fax, letter, email) that ensures confidentiality.
• The employer should document an attempt or attempts to contact and contacts with previous employers, no matter
how they were made, so that it can show a good faith effort to obtain the required information.
§40.25 – 9/1/01
QUESTION:
When a previous employer receives an inquiry from a new employer for drug and alcohol testing information, does the
previous employer provide information it may have received from other employers in the past?
ANSWER:
• As an employer, when you receive an inquiry about a former employee, you must provide all the information in your
possession concerning the employee’s DOT drug and alcohol tests that occurred in the two (three for FMCSA) years
preceding the inquiry.
• This includes information you received about an employee from a former employer (e.g., in response to the Federal
Motor Carrier Safety Administration’s pre-employment inquiry requirement).
• It is not a violation of Part 40 or DOT agency rules if you provide, in addition, information about the employee’s DOT
drug and alcohol tests obtained from former employers that dates back more than two (three for FMCSA) years ago.
• If you are an employer regulated by the FAA, this does not impact your requirements under the Pilot Record Act.
§40.25 – 1/25/02
QUESTION:
If an applicant admits to testing positive on or refusing to take a pre-employment test within the past two (three for
FMCSA) years, must the applicant be held out of safety-sensitive duties if he or she did not complete the return-to-duty
process (i.e., the SAP process)?
ANSWER:
• If the applicant admits that he or she had a positive or a refusal to test result on a pre-employment test, the employer
is not permitted to use the applicant to perform safety-sensitive duties until and unless the applicant documents
successful completion of the return-to-duty process.
• This Part 40 requirement applies whether or not the pre-employment positive or refusal occurred before, on, or after
August 1, 2001.
• Should no proof exist that the return-to-duty process was successfully complied with by the applicant, a current
return-to-duty process must occur before the individual can again perform safety-sensitive functions.
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§40.25 – 1/25/02
QUESTION:
When an employee leaves an employer for a period of time (but not exceeding two (three for FMCSA) years) and returns
to that same employer, must the employer once again seek to obtain information it may have received previously from
other employers?
ANSWER:
• No. If the information received previously is still on file with the employer, the employer need not seek to obtain the
testing data again.
• However, the employer must seek information from all other employers for whom the employee performed safetysensitive duties since the employee last worked for the employer.
§40.25 – 11/26/03
QUESTION:
May the previous employer delay sending an employee’s drug and alcohol testing information to the gaining employer
pending payment for the cost of the information?
ANSWER:
• No. Part 40 specifically requires that previous employers immediately provide the gaining employer with the
appropriate drug and alcohol testing information.
• No one (i.e., previous employer, service agent [to include C/TPA], employer information / data broker) may withhold
this information from the requesting employer pending payment for it.
§40.25 – 6/23/04
QUESTION:
Will FMCSA- and FAA-regulated employers complying with the drug and alcohol information records check requirements
contained in the Federal Motor Carrier Safety Administration (FMCSA) regulation 49 CFR Part 391 and the Federal
Aviation Administration (FAA) Pilot Record Improvement Act be considered compliant with 40.25?
ANSWER:
• Yes. Employers who are required by and who comply with the FMCSA’s three-year requirement for obtaining and
providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement
contained in 40.25.
• Likewise, employers who are required by and who comply with the FAA’s five-year requirement for obtaining and
providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement
contained in 40.25.
• These employers do not need to seek separately the 40.25 information if the employer adheres to the FMCSA and
FAA regulations, as appropriate, for obtaining an employee’s prior drug and alcohol testing information.
CHANGES TO FMCSA REGULATIONS
Federal Register: March 30, 2004 (Volume 69, Number 61)
Rules and Regulations
Page 16683-16722
Sec. 390.5 Definitions. Previous employer means any DOT regulated person who employed
the driver in the preceding 3 years, including any possible current employer.
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