Short Answer

Employers must retain drug and alcohol testing records for set periods that depend on the type of record. Under 49 CFR § 40.333, the general retention schedule is 5 years for verified positive drug test results, alcohol confirmation test results at or above the applicable threshold, refusals to test, SAP reports, and follow-up testing records; 3 years for records related to prior employer background information; 2 years for records related to Evidential Breath Testing (EBT) device calibration; and 1 year for negative and cancelled test results. Separately, 49 CFR § 40.311(h) specifically requires the employer to keep SAP reports for 5 years from the date received.

Detailed Explanation

Why Retention Periods Differ by Record Type

Not every testing record carries the same significance, and the retention schedule reflects that. Records tied to a violation, such as a verified positive result, a refusal, or a SAP's evaluation and follow-up reports, are kept the longest because they document the most consequential events in an employee's testing history. Routine records, like a single negative result or a cancelled test, are kept for a shorter period.

The General Retention Schedule Under 40.333

• 5 years: verified positive drug test results, alcohol confirmation test results at or above the applicable threshold, refusals to test, SAP reports, and follow-up testing records
• 3 years: records related to prior employer background information
• 2 years: records related to EBT calibration
• 1 year: negative and cancelled test results

Because retention rules can be detailed and situation specific, employers should confirm the exact category their particular record falls into with their C/TPA or legal counsel, particularly for records that do not fit neatly into one of these categories.

SAP Reports Specifically

49 CFR § 40.311(h) requires the employer to keep SAP reports it receives for 5 years from the date of receipt. This lines up with the 5 year period under 40.333 for SAP reports generally, and it applies whether the report documents an initial evaluation, a follow-up evaluation finding successful compliance, or a follow-up evaluation finding non-compliance.

Who Typically Maintains These Records

Many employers use a C/TPA to help store and organize testing records, but the underlying obligation to retain the records for the required period belongs to the employer. If a C/TPA relationship ends, the employer should confirm how records will be transferred or retained so the retention schedule is not interrupted.

Applicable Regulations

• 49 CFR § 40.333, record retention schedule
• 49 CFR § 40.311(h), requiring employers to keep SAP reports for 5 years from receipt

Professional Observation

In my experience, the most common documentation gap is not the initial testing record but the SAP's follow-up reports and the records confirming that follow-up testing actually occurred on schedule. These records tend to accumulate over months or years, and they are easy to lose track of if no single person is responsible for them. I recommend employers confirm, in writing with their C/TPA, exactly who is responsible for maintaining each category of record and for how long.

Common Misconceptions

Misconception

All drug and alcohol testing records must be kept for the same length of time.

Reality

49 CFR § 40.333 sets different retention periods depending on the type of record, ranging from 1 year for negative and cancelled results to 5 years for positive results, refusals, and SAP reports.

Why the Confusion Occurs

Because the SAP and Return to Duty process generates many different documents over time, it is easy to assume a single retention rule applies across the board, when the schedule actually varies by record type.

Frequently Asked Questions

How long must an employer keep a SAP's follow-up report?

Under 49 CFR § 40.311(h), the employer must keep SAP reports for 5 years from the date received, which aligns with the general 5 year retention period under 40.333 for SAP reports and follow-up testing records.

Do negative test results need to be kept as long as positive results?

No. Under 49 CFR § 40.333, negative and cancelled results generally carry a shorter, 1 year retention period, compared to the 5 year period for positive results, refusals, SAP reports, and follow-up testing records.

Related Articles

• What Are a DER's Responsibilities?

Primary Authorities/Sources

• 49 CFR § 40.333, Record retention
• 49 CFR § 40.311(h)

Need Help Building a Compliant DOT Drug and Alcohol Program?

If you need help setting up a recordkeeping system that matches these retention periods, a qualified C/TPA or DOT compliance professional can help you build a reliable process.

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