Row 4: Using a driver known to have tested positive for drugs (49 CFR 382.215)
Row 4 fails a new carrier that uses a driver known to have tested positive for a controlled substance. One occurrence fails the audit.
What the rule says
Under 49 CFR 382.215, a driver who tests positive, or has adulterated or substituted a specimen, may not report for duty, remain on duty or perform a safety-sensitive function. An employer having knowledge of such a result may not permit the driver to perform or continue to perform safety-sensitive functions. The audit row reads "using a driver known to have tested positive for a controlled substance" (49 CFR 385.321).
Where the knowledge comes from
- Your own tests. A verified positive reported to you by the medical review officer (MRO) or your consortium.
- The Clearinghouse. A full pre-employment query must be done before a driver's first safety-sensitive work, and it shows verified positives and other violations recorded by previous employers (49 CFR 382.701).
- The annual query. At least one query per year for every driver; if a limited query shows information exists, a full query must follow within 24 hours or the driver comes off safety-sensitive work until it does (49 CFR 382.701).
Hiring a driver without running the pre-employment query doesn't avoid the problem: the query is itself required, and skipping it is a separate violation.
Records involved
Verified positive results must be kept for five years, along with documents the MRO sent you and documents a driver presented to dispute a result. Negative and cancelled results are kept for one year (49 CFR 382.401). An auditor comparing the date of a positive with logs, dispatch or pay records can see whether the driver kept working.
What to do after a verified positive
- Remove the driver from all safety-sensitive functions immediately, including non-driving work like loading or vehicle inspections.
- Give the driver the list of substance abuse professionals as Part 40 requires.
- The driver may return only after completing the return-to-duty process in 49 CFR Part 40, Subpart O, including a negative return-to-duty test, followed by follow-up testing (49 CFR 382.503).
- Keep the records in your locked drug and alcohol file.
Owner-operators
A self-employed driver is both the employer and the driver and must meet both sets of duties (49 CFR 382.103). Your consortium will typically notify you of your own result; the rule still says you may not drive until the return-to-duty process is complete.
Prevention
Put the Clearinghouse query and the pre-employment test at the front of your hiring checklist, and don't dispatch a new driver until both are back clean. Write down who at your company receives MRO calls and what they do next.
If an auditor finds this violation, the audit fails. FMCSA then has up to 45 days to send written notice, and you get 60 days from the notice date to fix the problem and prove it (45 days for certain passenger and hazmat carriers) before your new entrant registration is revoked (49 CFR 385.319, 49 CFR 385.325). The overview explains the timeline.