I’m hiring a new driver who has an open violation. What do I need to do?

Quick Answer

First determine which of two situations applies. A driver who is still prohibited cannot perform a DOT safety-sensitive function. 49 CFR § 382.701(d) A driver who has completed the SAP process and achieved a negative return-to-duty test, but still has follow-up tests remaining, may perform safety-sensitive work only when the gaining employer assumes responsibility for the unfinished follow-up plan. 49 CFR § 382.701(d)(2)

An unresolved prohibition and an incomplete follow-up plan are not the same status. “Open violation” is informal shorthand; use the Clearinghouse result and the underlying return-to-duty documentation to identify the driver’s actual status.

Step 1 — Determine the Driver’s Current Status

Before using an FMCSA-regulated driver in a safety-sensitive function, conduct the required full pre-employment Clearinghouse query with the driver’s specific electronic consent. 49 CFR § 382.701(a) If the query shows a prohibition, do not use the driver in a safety-sensitive function unless the query demonstrates the conditions in § 382.701(d)(1) or (2). 49 CFR § 382.701(d)

The Clearinghouse establishes whether the FMCSA driver is prohibited or eligible, but it does not replace the SAP report needed to administer the dates, frequency, duration, and type of any remaining follow-up testing.

Step 2 — Complete the Required Testing-History Check

After obtaining written consent, an employer must obtain the applicable testing history for the two years before the application or transfer. For FMCSA history, the employer satisfies § 40.25 through the Clearinghouse; it must still use the § 40.25 inquiry for history governed by another DOT operating administration. 49 CFR § 40.25(a)(1)–(3)

The requested information includes alcohol tests at 0.04 or higher, verified positive drug tests, refusals, other DOT drug and alcohol violations, and—when the employee violated a DOT rule—“documentation of the employee’s successful completion of DOT return-to-duty requirements (including follow-up tests).” 49 CFR § 40.25(b)(1)–(5)

Step 3 — Do Not Use a Prohibited Driver

If you learn that the driver violated a DOT drug or alcohol rule, you must not use the driver to perform safety-sensitive functions unless you also obtain information showing subsequent compliance with the return-to-duty requirements. 49 CFR § 40.25(e) This governs safety-sensitive use; it does not decide whether you may employ the person in a non-safety-sensitive position.

Step 4 — Obtain the SAP Documentation and Follow-Up Requirements

Keep the information pathways separate. A former employer releases the testing history and return-to-duty completion information required by § 40.25 within the employee’s specific consent. 49 CFR § 40.25(b), (f)–(h) The successful-compliance SAP report itself must contain the follow-up testing plan. 49 CFR § 40.311(d)(9) The SAP must provide the written reports directly to a gaining DOT-regulated employer when the employee obtains another transportation-industry safety-sensitive position. 49 CFR § 40.311(f)

Section 40.25 does not, by itself, say that every former employer must send the complete SAP report or the confidential testing schedule. The gaining employer nevertheless needs the applicable SAP report and remaining plan details from the SAP so its DER or C/TPA can administer the plan correctly.

Step 5 — Continue the Existing Follow-Up Testing Plan

The gaining employer must carry out the SAP’s follow-up testing requirements and may not allow continued safety-sensitive work unless testing occurs as directed. 49 CFR § 40.309(a)

• Tests must be unannounced, with no discernible timing pattern, and the employee receives no advance notice. 49 CFR § 40.309(b)
• The employer chooses the actual dates; the SAP does not. 49 CFR § 40.307(d)(3)
• Random or other tests cannot substitute for follow-up tests. 49 CFR § 40.309(c)
• A cancelled follow-up test does not count and must be recollected. 49 CFR § 40.309(d)

The plan follows the employee to subsequent employers and through breaks in service. 49 CFR § 40.307(e)

Does the Follow-Up Testing Plan Start Over?

Generally, no. A change of employer alone does not ordinarily require the employee to begin the SAP process again or create a new follow-up plan. The gaining employer completes the remaining tests over the remaining period of safety-sensitive duty under the existing plan. 49 CFR § 40.307(e)

Can the Driver Receive the Follow-Up Testing Schedule?

No employer, SAP, or service agent may give the employee the schedule or reveal its frequency or duration. 49 CFR § 40.307(g) An employee may request SAP reports, but the SAP must redact follow-up-testing information before providing them. 49 CFR § 40.329(c)

What Must the Driver’s Former Employer Provide?

After reviewing the employee’s specific written consent, a former employer receiving a request under § 40.25 must immediately release the requested information to the employer making the inquiry. 49 CFR § 40.25(h) The disclosure must remain within the consent and the regulation’s scope.

The former employer must keep a written record of the information released, the date, the recipient, and a summary of what was provided. 49 CFR § 40.25(g) Responsive information includes documentation of successful completion of return-to-duty requirements, including completed follow-up tests, when applicable. 49 CFR § 40.25(b)(5)

What if the Former Employer Does Not Respond?

Obtain and review the information before first safety-sensitive use when feasible. Otherwise, obtain it as soon as possible; after 30 days of safety-sensitive work, the employer may continue only if it obtained the history or documented a good-faith effort. 49 CFR § 40.25(d) Keep the information or documented effort confidentially for three years. 49 CFR § 40.25(i) This good-faith rule addresses unavailable history; it does not override § 40.25(e)’s separate ban on using a known violator without evidence of return-to-duty compliance.

Employer Checklist

• Conduct the full pre-employment Clearinghouse query.
• Determine whether the driver is prohibited or eligible.
• Obtain the driver’s specific written consent and complete any required non-FMCSA prior-employer inquiry.
• Confirm successful return-to-duty compliance before safety-sensitive use. 49 CFR § 40.25(e)
• Obtain the applicable SAP report and remaining plan.
• Provide the requirements securely to the DER or C/TPA administering them.
• Schedule remaining tests without notice or a discernible pattern.
• Do not substitute random tests.
• Maintain confidential records.

Former Employer Checklist

• Review the employee’s specific written consent.
• Confirm the request is within § 40.25.
• Immediately release the required information.
• Include return-to-duty completion and completed follow-up-test documentation when applicable.
• Coordinate appropriately when the gaining employer needs the SAP’s remaining plan.
• Keep a written disclosure record. 49 CFR § 40.25(g)

Frequently Asked Questions

Can I hire a driver whose Clearinghouse record still shows a violation?

You may employ the person in a non-safety-sensitive role, but you may not use the driver for a safety-sensitive function while the Clearinghouse query shows a prohibition. If the driver is eligible after a negative return-to-duty test but has follow-up tests remaining, the employer may use the driver only by assuming responsibility for the remaining plan.

Can the driver perform safety-sensitive work while prohibited?

No. A prohibited driver may not perform safety-sensitive functions.

Can I hire a driver who still has follow-up tests remaining?

Yes, if the driver has completed the SAP evaluation, referral, and education or treatment process, achieved a negative return-to-duty test, and the employer assumes responsibility for the unfinished follow-up plan.

Does follow-up testing start over with a new employer?

Generally, no. A change of employer alone does not ordinarily restart the SAP process or create a new follow-up plan. The existing requirements follow the employee and the gaining employer completes what remains.

Does the former employer have to respond?

When a request is made under 49 CFR 40.25 and includes the employee's specific written consent, the former employer must immediately release the requested information within the scope of that consent.

Does the former employer have to send the entire SAP report?

Not necessarily. Section 40.25 requires specified testing history and documentation of successful return-to-duty completion, including follow-up tests; it does not by itself require every former employer to send the complete SAP report or confidential testing schedule.

How does the new employer obtain the follow-up testing plan?

The successful-compliance SAP report contains the follow-up plan, and the SAP must provide the report directly to a gaining DOT-regulated employer when the employee obtains another safety-sensitive transportation position.

Who schedules the remaining follow-up tests?

The employer chooses the actual dates while following the SAP's prescribed number, frequency, duration, and test type.

Can random tests count as follow-up tests?

No. Random or other tests cannot be substituted for required follow-up tests.

What if the former employer no longer has the SAP information?

Document the good-faith effort to obtain required history and ask the employee for return-to-duty documentation when the former employer lacks it. For an unfinished plan, contact the SAP because the SAP must retain employer reports for five years.

Does the driver receive the testing schedule?

No. The driver must not receive the follow-up testing schedule, frequency, or duration. A SAP must provide requested SAP reports to the employee only after redacting follow-up-testing information.

What records must the new employer retain?

Keep the confidential prior-history information or documented good-faith efforts for three years, Clearinghouse query records as required by 49 CFR 382.701(e), and SAP reports for five years.

Related Articles

• Employer / DER / C-TPA Guidance
• Employer Responsibilities After a DOT Violation
• Who Administers Follow-Up Testing?
• FMCSA Drug and Alcohol Clearinghouse
• DOT Return-to-Duty Process

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