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Thread: Failed pre-employment drug screen

  1. #21
    Myth_Buster is offline Member
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    Subpart B - Employer Responsibilities

    ? 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?


    (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).
    When the FMCSA investigates drivers who tested positive and it is discovered the driver failed to have the necessary SAP referral, return to duty drug test, and minimum of six follow-up tests in 12 months the driver can be penalized for failing to comply, be terminated by their present employer, and face charges for Part 390.35 for falsifying the questionnaire.

    Be safe.

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  3. #22
    terryj9351 is offline Rookie
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    Default Thanks for the info rookie

    How does the FMCSR find out because no one can tell them. Right to Privacy. I know what your saying about not telling the truth on an application, atomatic disqualification.

  4. #23
    kc0iv is offline Senior Board Member
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    Quote Originally Posted by Myth_Buster
    When the FMCSA investigates drivers who tested positive and it is discovered the driver failed to have the necessary SAP referral, return to duty drug test, and minimum of six follow-up tests in 12 months the driver can be penalized for failing to comply, be terminated by their present employer, and face charges for Part 390.35 for falsifying the questionnaire.

    Be safe.

    FMCSA doesn't investigate drug test. This is part of the joke with the Feds.

    kc0iv

  5. #24
    syl77dar is offline Board Regular
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    Default goodluck

    goodluck

  6. #25
    Myth_Buster is offline Member
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    terryj9351

    How does the FMCSR find out because no one can tell them. Right to Privacy. I know what your saying about not telling the truth on an application, atomatic disqualification.
    ? 40.321 What is the general confidentiality rule for drug and alcohol test information?

    Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent.

    (a) A ?third party? is any person or organization to whom other subparts of this regulation do not explicitly authorize or require the transmission of information in the course of the drug or alcohol testing process.

    ? 40.323 May program participants release drug or alcohol test information in connection with legal proceedings?

    (a) As an employer, you may release information pertaining to an employee's drug or alcohol test without the employee's consent in certain legal proceedings.

    (1) These proceedings include a lawsuit (e.g., a wrongful discharge action), grievance (e.g., an arbitration concerning disciplinary action taken by the employer), or administrative proceeding (e.g., an unemployment compensation hearing) brought by, or on behalf of, an employee and resulting from a positive DOT drug or alcohol test or a refusal to test (including, but not limited to, adulterated or substituted test results).

    (2) These proceedings also include a criminal or civil action resulting from an employee's performance of safety-sensitive duties, in which a court of competent jurisdiction determines that the drug or alcohol test information sought is relevant to the case and issues an order directing the employer to produce the information. For example, in personal injury litigation following a truck or bus collision, the court could determine that a post-accident drug test result of an employee is relevant to determining whether the driver or the driver's employer was negligent. The employer is authorized to respond to the court's order to produce the records.

    (b) In such a proceeding, you may release the information to the decisionmaker in the proceeding (e.g., the court in a lawsuit). You may release the information only with a binding stipulation that the decisionmaker to whom it is released will make it available only to parties to the proceeding.

    (c) If you are a service agent, and the employer requests its employee's drug or alcohol testing information from you to use in a legal proceeding as authorized in paragraph (a) of this section (e.g., the laboratory's data package), you must provide the requested information to the employer.

    (d) As an employer or service agent, you must immediately notify the employee in writing of any information you release under this section.

    ? 40.331 To what additional parties must employers and service agents release information?

    As an employer or service agent you must release information under the following circumstances:

    (a) If you receive a specific, written consent from an employee authorizing the release of information about that employee's drug or alcohol tests to an identified person, you must provide the information to the identified person. For example, as an employer, when you receive a written request from a former employee to provide information to a subsequent employer, you must do so. In providing the information, you must comply with the terms of the employee's consent.

    (b) If you are an employer, you must, upon request of DOT agency representatives, provide the following:

    (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions.

    (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency.

    (3) All items in paragraph (b)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards.


    (c) If you are a service agent, you must, upon request of DOT agency representatives, provide the following:

    (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions.

    (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency.

    (3) All items in paragraph (c)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards.

    (d) If requested by the National Transportation Safety Board as part of an accident investigation, you must provide information concerning post-accident tests administered after the accident.

    (e) If requested by a Federal, state or local safety agency with regulatory authority over you or the employee, you must provide drug and alcohol test records concerning the employee.

    (f) Except as otherwise provided in this part, as a laboratory you must not release or provide a specimen or a part of a specimen to a requesting party, without first obtaining written consent from ODAPC. If a party seeks a court order directing you to release a specimen or part of a specimen contrary to any provision of this part, you must take necessary legal steps to contest the issuance of the order (e.g., seek to quash a subpoena, citing the requirements of ?40.13 ). This part does not require you to disobey a court order, however.
    The confidentiality applies to third parties, not the US DOT.

    kc0iv

    FMCSA doesn't investigate drug test. This is part of the joke with the Feds.

    kc0iv
    If you say so, 8)

    Drivers may be located by their CDL number or name from the roadside database. It takes little effort to locate a driver who has had an inspection. The employer is then contacted to verify the driver reported the positive test and has all of the required information. Other sources include the driver?s application with all of the required contact information.

    Be safe.

  7. #26
    terryj9351 is offline Rookie
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    Default Stay on topic guys,we are talking about pre employment.

    You are not going to list a company on a applicaqtion that you never worked for,right. Anyone is third party if it's not the employer,lab,or the MRO. The company you applied for employment with is not going to get a request for information because they are not on your next application.
    Anyone that fails a radom is in trouble,because that was a test for a present employer. Correct me if I'm wrong.

  8. #27
    Myth_Buster is offline Member
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    terryj9351

    You are not going to list a company on a applicaqtion that you never worked for,right.
    A driver who holds a Class A CDL is required to provide 10 years of employment history on an application and a carrier is required to confirm three years of employment history regardless of who the driver worked for. If you worked for Sam Jones Trucking from January 2006 - September 2006 you would list Sam Jones Trucking on any application you filled out. Sam Jones Trucking is required to keep a record of who called to confirm your employment. Therefore Sam Jones could provide a list of carriers who inquired about your employment after a postive pre-employment test was discovered.

    Anyone is third party if it's not the employer,lab,or the MRO.
    No, the US DOT is not a third party and has access to all records:

    ? 40.331 To what additional parties must employers and service agents release information?

    As an employer or service agent you must release information under the following circumstances:

    (a) If you receive a specific, written consent from an employee authorizing the release of information about that employee's drug or alcohol tests to an identified person, you must provide the information to the identified person. For example, as an employer, when you receive a written request from a former employee to provide information to a subsequent employer, you must do so. In providing the information, you must comply with the terms of the employee's consent.

    (b) If you are an employer, you must, upon request of DOT agency representatives, provide the following:

    (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions.

    (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency.

    (3) All items in paragraph (b)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards.

    (c) If you are a service agent, you must, upon request of DOT agency representatives, provide the following:

    (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions.

    (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency.

    (3) All items in paragraph (c)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards.

    (d) If requested by the National Transportation Safety Board as part of an accident investigation, you must provide information concerning post-accident tests administered after the accident.

    (e) If requested by a Federal, state or local safety agency with regulatory authority over you or the employee, you must provide drug and alcohol test records concerning the employee.

    (f) Except as otherwise provided in this part, as a laboratory you must not release or provide a specimen or a part of a specimen to a requesting party, without first obtaining written consent from ODAPC. If a party seeks a court order directing you to release a specimen or part of a specimen contrary to any provision of this part, you must take necessary legal steps to contest the issuance of the order (e.g., seek to quash a subpoena, citing the requirements of ?40.13 ). This part does not require you to disobey a court order, however.
    terryj9351

    The company you applied for employment with is not going to get a request for information because they are not on your next application.
    No, however, the carrier you worked for last will have a record of all contacts.

    Lets say you applied to ABC Trucking and you had a positive pre-employment drug test. When you filled out the application for ABC Trucking you listed your previous employer Sam Jones Trucking, your address, CDL number, home phone, etc. If the FMCSA discovered the positive pre-employment drug test they could use your CDL and employment history listed to find you and discover whether or not you had the required SAP, return to duty, and six follow-up tests as required.

    terryj9351

    Anyone that fails a radom is in trouble,because that was a test for a present employer. Correct me if I'm wrong.
    Drugs and trucks don't mix, there are investigative tools available for a driver to be found regardless of when the driver tested positive.

    Be safe.

  9. #28
    terryj9351 is offline Rookie
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    Default If this ,If That. What if,. Does anyone really Know.

    If the Dot inspection comes to a company for an inspection they want records on present employees. If you contact my past employer's I haven't failed a test. I am concerned about a company releasing private information to DAC. I had a false positive for a company that I decided I didn't want to work for before the test results came back. I know it looks bad but I argued the results of the test. To me I'm not guilty of any wrong doing unless proven otherwise. What does and can a company legally do about a driver that fails a pre employment test, if they argue the results ,but don't go to work for that company.

  10. #29
    Myth_Buster is offline Member
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    terryj9351

    If this ,If That. What if,. Does anyone really Know.
    Only what I know of, my post are based on facts I am familiar with.

    If the Dot inspection comes to a company for an inspection they want records on present employees.
    Positive test reports must be retained for five years. Drivers who tested positive are always a concern. DQ files must be retained for three years. Because of the rate of turn over at some carriers all drivers are reviewed. FYI, a carrier is rated based on their last complete year of random testing, i.e. in September 2006 the random testing program for 2005 would be evaluated. The number of pre-employment drug test examined is based on the number of new hires.

    Records are examined based on issues discovered. Why look at drivers who tested negative if there are two or three positive drivers?

    If you contact my past employer's I haven't failed a test.
    No, but they can provide information on who asked about your employment history.

    What does and can a company legally do about a driver that fails a pre employment test,
    Retain the positive test result for five years and the driver qualification file for three years.

    if they argue the results ,but don't go to work for that company.
    The MRO has the final say, it doesn't matter what the driver argues. The driver's only option is to request the split sample be sent to a different lab for evaluation. If the split comes back clean, no problem. If the split comes back positive case closed positive test.

    Be safe.

  11. #30
    terryj9351 is offline Rookie
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    Default So they keep a record for 5 years.

    Unless you apply again with this company again or tell another company that you applied with them. They just keep it in there records for 5 years.
    It wouldn't be an issue for another company. They might even see that this other company requested your DAC record, but that doesn't mean anything. They can't legal report it to DAc unless it is requested and then they have to have written consent. The Right to Privacy is the law unless you break the law. Failing a pre employment drug test isn't illegal as far as I know. Feed me more info if you can. I need to know as much as I can before seeking employment. I will test myself before I ever apply for another company. Nothing ,not even prescription med will ever enter my body again. Everyone needs to read up on Ibuprofen as a med that causes a false positive for THC. I'm a believer. Thanks for the help in sorting this mess out.

  12. #31
    Myth_Buster is offline Member
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    terryj9351, you're not getting it. Once a driver test positive there are regulatory requirements that must be met. If the driver fails to meet those requirements then the driver faces prosecution.

    It doesn't matter what DAC does, DAC is not the regulating body.

    ? 40.285 When is a SAP evaluation required?

    (a) As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.

    (b) For purposes of this subpart, a verified positive DOT drug test result, a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater, a refusal to test (including by adulterating or substituting a urine specimen) or any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation.
    Drivers that fail to heed this warning face prosecution and termination from their present employer when the DOT starts investigating.

    Be safe.

  13. #32
    terryj9351 is offline Rookie
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    Default I get it, for an employee

    I wasn't their employee, I was unemployed and still am. No company owns me until I'm officially hired. If you are disqualified at any point you are disqualified from possible employment. I don't think your an employee at any point until you fully qualify for that job and then you are hired. Give me more I am opened mined on the whole subject. If you apply for any job and fail the pre employment test ,you are not eligable for employment now or in the future. That includes mining, logging, fishing.Explain why this is different.

  14. #33
    Myth_Buster is offline Member
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    Un Terry, you had a positive test. When you go to work for the other trucking company you are now an employee. As such you are now required to have all of the requirements fulfilled before you can perform a safety sensitive function.

    Hello.

    ? 40.285 When is a SAP evaluation required?

    (a) As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.
    Once a driver test positive they are prohibited from driving any truck until they have fulfilled the requirements of the regulation.

    You do see the words "ANY EMPLOYER" don't you?

    Nice try, but the regulations covered that possible loop hole.

    Test positive? You're done, poke him with a fork.

    Be safe.

  15. #34
    terryj9351 is offline Rookie
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    Default Yes as an employee

    If I go to work or am employeed by another company. I have allready past a pre employment test. I have not failed a test while employeed by a company. There are a list of safety sensitive occupations and if you fail the pre employment test you just can't get hired by that company. I Know you can go to the next and pass theirs and you are hired. It's just like the time I didn't qualify for a job because I mentioned having a bad Knee. It wasn't on my DOT physical or on my application so I was disqualified. I ain't going to put it down on a DOT or application because no one would hire me. I did get another job, the knee held up ,never had a problem and no one was the wiser. It's just like scratching a truck, you never admit it,if you do you'll get fired and have a hard time getting another job. This is a industry of lies, tell me I'm wrong.

  16. #35
    lonewolf is offline Member
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    trust me terry,he knows what he is talking about,right myth_buster? :lol:

  17. #36
    terryj9351 is offline Rookie
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    Default O.K. so me the rules for pre employment

    Show me the rules for d&a testing in regard to pre employment. Beside the fact that it has to be performed ,we all know that. I'm talking about
    the rules on failing a pre employment other than the part that you can't perform for that employer. Show me the one that says if you fail it becomes a part of your history, that the employer can call everyone they no and tell them and you must go to a SAP. Come on guys I almost beleive it. I just can't find it in black and white.

  18. #37
    Myth_Buster is offline Member
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    Thanks lonewolf, I appreciate the vote of confidence.

    Terry:

    If I go to work or am employeed by another company. I have allready past a pre employment test. I have not failed a test while employeed by a company.
    Yes, you have a negative pre-employment test. However, you have a positive drug test. Therefore, you are required to see a SAP, have a return to duty test, and six follow-up tests. That is why employers must ask:

    ? 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?

    (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).
    There are a list of safety sensitive occupations and if you fail the pre employment test you just can't get hired by that company.
    Part 40 applies to all modes of transportation, Part 382 applies to highway transportation. Part 382 has defined "Safety Sensitive Function:"

    ?382.107 Definitions.


    Words or phrases used in this part are defined in ??386.2 and 390.5 of this subchapter, and ?40.3 of this title, except as provided in this section-

    Safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include:

    (1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;

    (2) All time inspecting equipment as required by ??392.7 and 392.8 of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;

    (3) All time spent at the driving controls of a commercial motor vehicle in operation;

    (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of ?393.76 of this subchapter);

    (5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and

    (6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
    I Know you can go to the next and pass theirs and you are hired.
    You gained employment under false pretenses, the employer will terminate your employment once it is discovered you tested positive.

    It's just like the time I didn't qualify for a job because I mentioned having a bad Knee. It wasn't on my DOT physical or on my application so I was disqualified.
    You revealed additional information not required by the FMCSR. That was a personal choice.

    I ain't going to put it down on a DOT or application because no one would hire me.
    If the employer offers you the questionnaire as required by Part 40.25(j) and you answer "NO." You have violated the FMCSR and may be prosecuted for:

    1. Driving without a SAP referral
    2. Falsifying a form required by the FMCSR In-accordance-with Part 390.35

    I did get another job, the knee held up ,never had a problem and no one was the wiser.
    Happy things worked out. However, the knee issue is not the same as failing to disclose a positive drug test.

    It's just like scratching a truck, you never admit it,if you do you'll get fired and have a hard time getting another job.
    Perhaps you're correct you may not get another truck driving job. However, in my opinion that's a good thing. I don't believe that drivers who tested positive belong on the road.

    This is a industry of lies, tell me I'm wrong.
    Where does the lying begin? Look in the mirror for the base of the problem.

    Be safe.

  19. #38
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    There is another thing to consider, too. Each company is different. Some will consider employment beginning the moment you show up for orientation that first day and take your drug test. In this case, it will show up on DAC, as well as on your employment history at your local unemployment office.

    Other companies won't consider you an employee until you take your first load and will not report it to DAC. However, in those cases, the information is stored for later release as necessary. Right now, every company must release drug & alcohol testing information for the past 3 years on every employee check. If the time comes that DOT requires the same on pre-employment tests (and it likely will soon), those reports will likely be retroactive. That means your employee could receive that positive drug test, resulting in your termination and removal from the industry for quite some time.

    Full disclosure is always the best bet. It may make getting a job more difficult but at least you don't have to worry about someone opening the closet and finding the skeleton, which would be infinitely worse.

  20. #39
    heritage92rs is offline Rookie
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    Ok, everything is pretty close here, just thought I'd put my 2 cents in.

    You are not hired until you SEAT a truck. Just going to orientation has no guarantee that you will drive for that company.

    If you go to orientation and take a drug screen and a physical, you are DAC'd, granted that the company reports to DAC. Even if they don't, wherever you go to drive after that will contact the company that you failed the drug screen at, and you'll more than likely still have to deal with that situation. If you don't say that you went to the company's orientation and your new company finds out, falsified application comes into play.

    Not every company reports to DAC instantly, some take up to 6 months to update a DAC report. Some take 1 week, everyone is different.

  21. #40
    Big John is offline Member
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    I think some of you are smoking Pot and should quit before you get pulled for a random test.

    If you have positive drug screen the company should have the right to call the law and have your dumb ***** arrested, spend a year in jail, pay a huge fine, have your CDL taken away for life and have your ***** kicked for doing drugs in the first place. Then I think we would have safer roads.

    Just one of your fellow drivers that is drug free.
    Lookin At The World Thru A Windshield!

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