Does a Failed Drug Test Show Up on Your Record?
Independently fact-checked against primary sources (last audited August 4, 2026). · 8 primary sources cited on this page. How we verify our legal content
A failed drug test does not become a public record unless it leads to a criminal conviction or parole revocation. HIPAA rarely applies to employer-ordered testing, since most employers are not "covered entities"; the Americans with Disabilities Act, state law, and workplace privacy rules govern who can see the results instead.
The Health Insurance Portability and Accountability Act (HIPAA) requires "covered entities," meaning health plans, health care clearinghouses, and health care providers who transmit certain information electronically, to share medical information only on a need-to-know basis and in a way that protects patient privacy. Most employers are not covered entities, so an employer-ordered drug test, such as a pre-employment or random workplace screening, usually falls outside HIPAA altogether. Even when a covered entity is also an employer, HIPAA excludes "employment records held by a covered entity in its role as employer" from the definition of protected health information (). A drug test your own doctor orders as part of your medical care is different. That result becomes part of your medical record and is protected against unauthorized disclosure. Either way, a failed drug test is not a public record unless it led to a criminal conviction or parole revocation.
DOT-regulated employers must keep verified positive drug and alcohol test results on file for five years under federal regulation, and non-DOT employers set their own retention periods under company policy and state law. There are also some specific cases where your drug test may become part of a public record.
Note: Under the Americans with Disabilities Act (ADA), a test for illegal drug use is not considered a medical examination. If the results of a test reveal the use of a lawfully prescribed drug, however, those results are medical information and must be kept confidential.
Quick take
- Federal law does not require most private employers to have a drug-free workplace policy; the Drug-Free Workplace Act of 1988 requires one only for federal contractors above certain thresholds and federal grantees.
- Safety-sensitive employees and applicants in federally regulated transportation, such as school bus and truck drivers, pipeline workers, train engineers, and the aviation workers listed in 14 CFR 120.105 (flight crew, flight attendants, aircraft dispatchers, maintenance personnel, and air traffic controllers, whether employed directly or by contract), must take mandatory drug and alcohol tests.
- Mariners are covered too, but through a different agency. Coast Guard-regulated marine employers run testing under 46 CFR 16.113, which requires those programs to follow the same 49 CFR Part 40 procedures, and the Coast Guard itself now sits in the Department of Homeland Security rather than the Department of Transportation (6 U.S.C. 468).
- A drug test alone is not a public record. It only shows up in a criminal background check if it results in a conviction or a parole revocation.
- A prior drug-related conviction, separate from a recent employer-ordered test, can still show up in a background check; see how long a felony stays on your record state by state.
- A doctor or "covered entity" may share your confidential medical record with third parties only if you sign a release, under a court order, or under another exception recognized by HIPAA.
- Employers can generally see only a "pass" or "fail" result from a company-sanctioned test, not the underlying medical details.
Do you have to disclose a failed drug test?
Yes and no. What do I mean? Assuming that you are looking for a new job, you might be worried that a former employer may share a failed drug test with a potential new employer.
Most privately-owned companies do not share failed drug tests or medical records because of the possibility of legal action. Remember. As mentioned, medical records, including drug tests, are not public records. Why?
EEOC guidance on the use of arrest and conviction records in employment decisions explains that an employer's use of an individual's criminal history when making employment decisions may, in some cases, violate Title VII of the Civil Rights Act of 1964.
What you need to remember is that failing a drug test will not show up on a criminal record unless it leads to a criminal conviction or the revocation of parole. Therefore, a former employer cannot share drug test results without your authorization.
In other words, whether a drug test shows up in a background check depends on a few factors:
- Is it a government or private employer? Applicants for a government job, military position, or law enforcement role may have to disclose a failed drug test depending on state law.
- Did the test lead to a conviction? If it led to a conviction or a parole revocation, the record will show up in a criminal background check.
- Was the test required by a government program? Drug tests taken to comply with a governmental organization's requirements can become part of the public record.
Note. Most privately owned businesses and organizations do not disclose failed drug tests because it may lead to legal issues involving invasion of privacy, or discrimination.
Can employers see if you failed a drug test?
As mentioned, a failed drug test that did not result in a conviction will not show up on a background check. For a company-sanctioned test, your employer typically sees only a pass or fail result. Where HIPAA does apply, meaning the entity holding the record is a "covered entity" such as a hospital, clinic, or health plan, federal regulation permits that covered entity to use or disclose a positive result without your authorization only in specific situations, under 45 CFR 164.512:
- For research, under certain conditions.
- When required by law or law enforcement.
- Involving victims of abuse, neglect, or domestic violence.
- For judicial and administrative proceedings.
- To prevent or lessen a serious and imminent threat to health or safety.
Because most employers are not "covered entities" under HIPAA, HIPAA itself does not restrict how an employer uses drug test results it holds in its role as employer. Other laws fill that gap instead. Under the ADA, a test for illegal drug use is not medical information, but if a test incidentally reveals the lawful use of a prescription medication, that information must be kept in a separate confidential medical file and disclosed only to supervisors regarding necessary work restrictions, to first-aid and safety personnel, or to government officials investigating ADA compliance. State privacy and employment laws add further limits, and disclosing results outside these narrow channels can support a common-law invasion of privacy claim.
Who can see my drug test results?
You can physically decline a drug test, but declining is not consequence-free, and in a DOT safety-sensitive role it is not an exercise of a right at all. 49 CFR 40.191 lists the conduct that counts as a refusal and provides that if you refuse to take a drug test, "you incur the consequences specified under DOT agency regulations for a violation of those DOT agency regulations."
A refusal is one of the violations covered by 49 CFR 40.285, which means you cannot perform any DOT safety-sensitive duty for any employer until you complete a substance abuse professional evaluation and the referral and education or treatment process that follows it.
Outside DOT testing, agreeing to a test usually means signing a consent form that authorizes your employer to view the result. Because of that, individuals who have access to your drug test results vary. It could be:
- Selected human resources employees.
- The organization's safety manager.
- Your designated employer representative.
- A substance abuse professional.
Can a company fire you for a failed drug test?
That depends on company policy, meaning a failed drug test may lead to disciplinary action or dismissal. The question is, what was in the testing agreement?
Before you submit yourself to a drug test, your employer requires you to sign some documents. What the organization will do with the test results should be on the agreement. Therefore, make it a habit to read before you sign. Remember, companies change drug policies, and it is within their rights to do that. Nobody can physically force you into a collection room, but what happens after you decline is a different question, covered next.
What if you refuse testing?
Whether you have any recourse depends on your state and on what you agreed to. Most employment is at-will, so an employer can often treat a refusal as grounds for dismissal even without a signed policy. A handful of states regulate workplace testing by statute, and a signed testing policy generally lets the employer treat a refusal the same as a positive result. Check your state's law or talk to a local employment attorney before refusing.
If you hold a DOT safety-sensitive job, the calculation is different again. As covered above, a refusal there is a regulatory violation under 49 CFR 40.191, separate from anything your employer decides to do about it.
Note: An at-home test kit is not a substitute for a laboratory result. Check the kit's package insert for the thresholds it uses, and treat the result as an informal indicator only, since only a certified laboratory result is typically accepted for employment or legal purposes.
Failed drug tests and marijuana discrimination
With the ongoing legalization of marijuana, drug testing laws can get complicated. The thing is, the law in most states does not prohibit employers from establishing and enforcing drug policies, but medical cannabis will show the same results as recreational cannabis. Because of that, dismissing an employee for cannabis use may result in legal backlash.
What you need to remember is some states prohibit discrimination based on marijuana use, and some allow employers to dismiss employees for drug use. We recommend consulting with a local attorney or checking state law.
Also:
- As of NCSL's cannabis tracking, at least 24 states and the District of Columbia have legalized cannabis for recreational adult use, and a larger number allow medical marijuana in some form; the count keeps changing as more states act.
- Beyond Nevada, several other states, including California, Connecticut, Montana, New Jersey, New York, and Rhode Island, now limit how much an employer can rely on a positive marijuana test or off-duty marijuana use when making employment decisions.
- Working under the influence of marijuana on the job can still be grounds for dismissal or other disciplinary action, even in states that have legalized recreational or medical use.
What you need to remember
- Some states, including Nevada, have made it illegal to refuse someone employment because of a failed marijuana test.
- If the job or position may adversely affect the safety of others, say a firefighter or law enforcement position, or if the position requires you to operate machinery or motor vehicles, the employer has the right not to hire you if you failed a drug test.
How long does a failed drug test stay on record?
Note that company-sanctioned drug tests are confidential between you and the company. Because of that, how long the record stays depends on company policy. On the other hand, prior drug-related convictions remain visible on background checks until you expunge your record.
When a court expunges or seals a criminal record, the documents are no longer public. The record will not show up on most background searches.
Find out if you can expunge your record here.
The Omnibus Transportation Employee Testing Act of 1991: Does a failed drug test show up on a background check?
Companies regulated by DOT (US Department of Transportation) must keep verified positive drug and alcohol test results for five years under 49 CFR 40.333; negative and cancelled results are kept for one year.
Separately, when a safety-sensitive transportation worker changes jobs, the new employer has to look back at that worker's DOT testing history before putting them to work. The length of the lookback depends on the mode, and the two regimes are often confused.
For a commercial driver, 49 CFR 391.23(e) requires the prospective motor carrier to investigate testing information from all previous DOT-regulated employers that employed the driver "within the previous three years from the date of the employment application." That inquiry now runs largely through the FMCSA Drug and Alcohol Clearinghouse.
In the other DOT modes, including aviation, rail, transit, and pipeline, the DOT-wide rule at 49 CFR 40.25(b) applies instead. The new employer must obtain testing information from DOT-regulated employers who employed the worker "during any period during the two years before the date of the employee's application or transfer," and under 40.25(a) it has to get the employee's written consent before requesting it. So a pilot's lookback is two years, not the three years that applies to a truck driver.
Either way, a verified positive result can affect a safety-sensitive worker's hiring prospects industry-wide, well beyond the original employer.
Remember, the law does not allow other employers to share failed drug tests with third parties without your authorization. That makes it vital to read a testing policy before submitting to a drug test.
Confidentiality rules for drug test results: what you need to know
- Disclosure of drug test results without your consent is generally restricted by state privacy law, employment law, and, where a covered entity such as a treating clinic is involved, HIPAA; exceptions typically include a court order, a government investigation, or ongoing litigation related to the test.
- Company policy determines who inside the organization can see the results and how they may be used.
- Many employers voluntarily commit, by policy or by contract with a testing vendor, to keep drug test results confidential and separate from the general personnel file.
- Employers may still ask for written consent before sharing results with an outside third party, such as a licensing board or a client requiring proof of a clean test.
- Employers retain the right to set consequences for a failed test under their own policy, which can include termination, denial of employment, or mandatory participation in a rehabilitation program.
- Disclosing results outside these channels can expose an employer to a civil claim for invasion of privacy or, in some circumstances, discrimination.
State drug testing laws
State laws determine several factors, including:
- Random testing requirements and restrictions.
- Termination or restrictions based on drug test results.
- Employee drug test notification.
- Drug-free workplace policies.
Because of that, if you are an employer, it is vital to ensure that your testing policies are compliant with state laws. The reason for that is, if your testing policy violates a state statute, an employee may find ground to take civil action. Start with the basics, that is, make sure that you have a Medical Review Officer, work with a SAMHSA-certified lab, and use a qualified collection facility.
Frequently Asked Questions
Does a failed drug test show up on a background check?
A failed drug test alone does not appear on a criminal background check. It only becomes part of a background check if it led to a criminal conviction or a parole revocation, or if the result must be reported to a licensing board or government registry by law.
Does HIPAA protect drug test results?
Only in limited situations. HIPAA restricts disclosures by "covered entities," such as health plans and health care providers, and its own definition of protected health information excludes employment records an employer holds in its role as employer under 45 CFR 160.103. Most employer-ordered drug tests fall outside HIPAA entirely; the ADA, state law, and general privacy law govern those instead.
Can my employer tell a future employer that I failed a drug test?
Generally, no, not without your written authorization or a court order. Most employers keep drug test results confidential under company policy or state law, and unauthorized disclosure can expose the employer to a civil claim for invasion of privacy.
How long do DOT drug test results stay on file?
Under 49 CFR 40.333, DOT-regulated employers must keep verified positive drug and alcohol test results for five years and negative or cancelled results for one year. Separately, a new employer hiring a commercial driver must check the driver's last three years of testing history under 49 CFR 391.23(e), primarily through the FMCSA Drug and Alcohol Clearinghouse. In the other DOT modes, including aviation, rail, transit, and pipeline, the new employer must instead obtain the previous two years of DOT testing information under 49 CFR 40.25(b).
Can I be denied a job for failing a marijuana test in a state where marijuana is legal?
It depends on the state. Some states, including Nevada, California, New York, New Jersey, Connecticut, Montana, and Rhode Island, limit an employer's ability to act on a positive marijuana test or off-duty marijuana use, but nearly all of these laws still allow adverse action for safety-sensitive or federally regulated positions and for being impaired on the job.
What happens if I refuse a workplace drug test?
It depends on your state and on your job. Most employment is at-will, so an employer can often treat a refusal as grounds for dismissal even without a signed policy, and a signed testing policy generally lets the employer treat a refusal the same as a positive result. In a DOT safety-sensitive role a refusal is a regulatory violation: 49 CFR 40.191 lists the conduct that counts as a refusal, and under 49 CFR 40.285 you cannot perform any DOT safety-sensitive duty for any employer until you complete a substance abuse professional evaluation and the referral and treatment process that follows it.
Updates
Corrected the DOT job-change lookback, which had applied the three-year commercial-driver figure to pilots and other transportation workers. The three-year period comes from 49 CFR 391.23(e) and governs motor carriers; the DOT-wide rule for aviation, rail, transit, and pipeline is a two-year lookback under 49 CFR 40.25(b). Qualified a flat statement that employees have the right to refuse a drug test, which is not true for DOT safety-sensitive workers, since 49 CFR 40.191 treats a refusal as a regulatory violation and 49 CFR 40.285 bars the worker from DOT safety-sensitive duty for any employer until a substance abuse professional evaluation is completed. Replaced an unsupported claim that an employee with no signed testing policy may sue over a dismissal for refusing a test with the accurate at-will picture. Corrected a summary bullet that listed the Coast Guard as a DOT agency and named FAA employees rather than the aviation workers 14 CFR 120.105 actually covers. Replaced a Department of Labor ADA link that now returns a 404 with the current ADA.gov page, dropped an uncited comparison between at-home kit and laboratory cutoff levels, and added the underlying regulations to the source list.
Independently fact-checked against the cited primary sources
Corrected the article's HIPAA framing: most employer-ordered drug tests fall outside HIPAA because most employers are not "covered entities," and HIPAA's own definition of protected health information excludes employment records held by a covered entity in its role as employer (45 CFR 160.103). Corrected a factual error citing "Title VIII" of the Civil Rights Act of 1964 to the correct Title VII. Corrected DOT drug-test retention guidance: verified positive results are kept five years under 49 CFR 40.333, not three; the three-year figure is the lookback window new employers must investigate through the FMCSA Drug and Alcohol Clearinghouse. Repaired seven broken links left over from the original WordPress migration and replaced two dead or mismatched source URLs. Removed a stray affiliate shortlink and a duplicate hand-written references list. Updated state marijuana-legalization figures and added a Frequently Asked Questions section.
The Law Behind This Article
This article rests on 10 statutory provisions held in our own legal record, each retrieved from the official source. Tap a section to read the operative text.
Code of Federal Regulations Title 14
§ 120.105Employees who must be tested.In force
Each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly or by contract (including by subcontract at any tier) for an employer as defined in this subpart must be subject to drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless of the degree of supervision. The safety-sensitive functions are: (a) Flight crewmember duties. (b) Flight attendant duties. (c) Flight instruction duties. (d) Aircraft dispatcher duties. (e) Aircraft maintenance and preventive maintenance duties. (f) Ground security coordinator duties. (g) Aviation screening duties. (h) Air traffic control duties. (i) Operations control specialist duties.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 1 court opinionsMost recently applied by a court: 2010
Leading cases: Pasternack v. National Transportation Safety Board (Court of Appeals for the D.C. Circuit 2010, 596 F.3d 836)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Code of Federal Regulations Title 45
§ 160.103Definitions.In forcecited in 10 of our articles
Except as otherwise provided, the following definitions apply to this subchapter: Act means the Social Security Act. Administrative simplification provision means any requirement or prohibition established by: (1) 42 U.S.C. 1320d-1320d-4, 1320d-7, 1320d-8, and 1320d-9; (2) Section 264 of Pub. L. 104-191; (3) Sections 13400-13424 of Public Law 111-5; or (4) This subchapter. ALJ means Administrative Law Judge. ANSI stands for the American National Standards Institute. Business associate: (1) Except as provided in paragraph (4) of this definition, business associate means, with respect to a covered entity, a person who: (i) On behalf of such covered entity or of an organized health care arrangement (as defined in this section) in which the covered entity participates, but other than in the capacity of a member of the workforce of such covered entity or arrangement, creates, receives, maintains, or transmits protected health information for a function or activity regulated by this subchapter, including claims processing or administration, data analysis, processing or administration, utilization review, quality assurance, patient safety activities listed at 42 CFR 3.20, billing,…
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 374 court opinionsMost recently applied by a court: 2026
In the courts (editorial summary, independently checked):Courts have applied § 160.103 to interpret HIPAA definitions, including Northwestern Memorial Hospital v. Ashcroft (7th Cir. 2004), addressing individually identifiable health information, and Kenneth Wilson v. UnitedHealthcare (4th Cir. 2022), addressing a subset of health information under the definition.
Leading cases: Northwestern Memorial Hospital v. John Ashcroft, Attorney General of the United States (Court of Appeals for the Seventh Circuit 2004, 362 F.3d 923) · Florida Ex Rel. Attorney General v. United States Department of Health & Human Services (Court of Appeals for the Eleventh Circuit 2011, 648 F.3d 1235) · Zani v. Rite Aid Headquarters Corp. (District Court, S.D. New York 2017, 246 F. Supp. 3d 835)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: When Is a Business Associate Agreement Required? (2026), District of Columbia Data Breach Notification Laws: Reporting Rules & Timelines (2026), South Dakota Data Breach Notification Laws: Reporting Rules & Timelines (2026)
§ 164.512Uses and disclosures for which an authorization or opportunity to agree or object is not required.In forcecited in 4 of our articles
Except as provided by § 164.502(a)(5)(iii), a covered entity may use or disclose protected health information without the written authorization of the individual, as described in § 164.508, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section, subject to the applicable requirements of this section and § 164.509. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or disclosure permitted by this section, the covered entity's information and the individual's agreement may be given verbally. (a) Standard: Uses and disclosures required by law. (1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law. (2) A covered entity must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or disclosures required by law. (b) Standard: Uses and disclosures for public health activities —(1) Permitted uses and disclosures.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 580 court opinionsMost recently applied by a court: 2026
Leading cases: Northwestern Memorial Hospital v. John Ashcroft, Attorney General of the United States (Court of Appeals for the Seventh Circuit 2004, 362 F.3d 923) · Law v. Zuckerman (District Court, D. Maryland 2004, 307 F. Supp. 2d 705) · Bayne v. Provost (District Court, N.D. New York 2005, 359 F. Supp. 2d 234)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: HIPAA and Subpoenas: When Can PHI Be Disclosed? (2026), 45 C.F.R. § 164.512 Explained: HIPAA Disclosure Rules, Statutes Explained: Plain-English Guides to Major US Laws
Code of Federal Regulations Title 46
§ 16.113Chemical drug testing.In force
(a) Drug testing programs required by this part must be conducted in accordance with 49 CFR part 40, Procedures for Transportation Workplace Testing Programs. This subpart summarizes the responsibilities of credentialed mariners, marine employers, MRO, SAP and other chemical testing service providers in 49 CFR part 40. The regulations in 49 CFR part 40 should be consulted to determine the specific procedures which must be established and utilized. Drug testing programs required by this part must use only drug testing laboratories certified by the Department of Health and Human Services (DHHS). (b) Each specimen collected in accordance with this part will be tested, as provided in 49 CFR 40.85, for the following: (1) Marijuana; (2) Cocaine; (3) Opiates; (4) Phencyclidine (PCP); and (5) Amphetamines.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Code of Federal Regulations Title 49
§ 391.23Investigation and inquiries.In force
(a) Except as provided in subpart G of this part, each motor carrier shall make the following investigations and inquiries with respect to each driver it employs, other than a person who has been a regularly employed driver of the motor carrier for a continuous period which began before January 1, 1971: (1) An inquiry, within 30 days of the date the driver's employment begins, to each driver's licensing authority where the driver held or holds a motor vehicle operator's license or permit during the preceding 3 years, to obtain that driver's motor vehicle record covering that driver's prior 3-year driving history. (2) An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years. (b) A copy of the motor vehicle record(s) obtained in response to the inquiry or inquiries to each driver's licensing authority required by paragraph (a)(1) of this section must be placed in the driver qualification file within 30 days of the date the driver's employment begins and be retained in compliance with § 391.51.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 42 court opinionsMost recently applied by a court: 2025
Leading cases: Owner-Operator Independent Drivers Ass'n v. USIS Commercial Services, Inc. (Court of Appeals for the Tenth Circuit 2008, 537 F.3d 1184) · Ziemkiewicz v. R + L Carriers, Inc. (District Court, D. Maryland 2014, 996 F. Supp. 2d 378) · Frank McKenna v. Dillon Transportation, LLC (Court of Appeals for the Sixth Circuit 2024, 97 F.4th 471)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 40.191What is a refusal to take a DOT drug test, and what are the consequences?In force
(a) As an employee, you have refused to take a drug test if you: (1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see § 40.61(a)); (2) Fail to remain at the testing site until the testing process is complete. Provided that an employee who leaves the collection site before the testing process commences (see § 40.63(c) or § 40.72(d)(3), as applicable) for a pre-employment test is not deemed to have refused to test. The collector is not required to inform an employee that the failure to remain at the collection site is a refusal. If an employee leaves prior to the completion of the testing process, per § 40.355(i) the employer must decide whether the employee's actions constitute a refusal; (3) Fail to provide a specimen for any drug test required by this part or DOT agency regulations.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 29 court opinionsMost recently applied by a court: 2026
Leading cases: Pasternack v. Laboratory Corp. of America (District Court, S.D. New York 2012, 892 F. Supp. 2d 540) · Ziemkiewicz v. R + L Carriers, Inc. (District Court, D. Maryland 2014, 996 F. Supp. 2d 378) · Duchek v. National Transportation Safety Board (Court of Appeals for the D.C. Circuit 2004, 364 F.3d 311)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 40.25Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?In force
(a)(1) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraphs (b) through (j) 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 transferring 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. (2) If you are an employer regulated by FMCSA, you must comply with the requirements of this section by using the FMCSA's Drug and Alcohol Clearinghouse in accordance with 49 CFR 382.71(a). In addition, you must continue to comply with the requirements of this § 40.25 when checking an employee's testing history with employers regulated by a DOT operating administration other than FMCSA. (3) If you are an employer regulated by FMCSA, with a prospective employee subject to drug and alcohol testing with a DOT agency other than FMCSA, you must continue to request the information about the employee listed in paragraphs (b) through (j) of this section.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 40 court opinionsMost recently applied by a court: 2024
Leading cases: Parry v. Mohawk Motors of Michigan, Inc. (Court of Appeals for the Sixth Circuit 2000, 236 F.3d 299) · International Brotherhood of Teamsters, Chauffeurs, Western Conference of Teamsters v. Department of Transportation (Court of Appeals for the Ninth Circuit 1991, 932 F.2d 1292) · Anderson v. Independent School District (Court of Appeals for the Eighth Circuit 2004, 357 F.3d 806)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 40.285When is a SAP evaluation required?In force
(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 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.
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
Cited in 6 court opinionsMost recently applied by a court: 2026
Leading cases: BNSF Railway Co. v. United States Department of Transportation (Court of Appeals for the D.C. Circuit 2009, 566 F.3d 200) · Ryan Paul v. FAA (Court of Appeals for the D.C. Circuit 2026) · George Larson v. United Natural Foods West Inc. (Court of Appeals for the Ninth Circuit 2013, 518 F. App'x 589)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 40.333What records must employers keep?In force
(a) As an employer, you must keep the following records for the following periods of time: (1) You must keep the following records for five years: (i) Records of alcohol test results indicating an alcohol concentration of 0.02 or greater; (ii) Records of verified positive drug test results; (iii) Documentation of refusals to take required alcohol and/or drug tests (including substituted or adulterated drug test results); (iv) SAP reports; and (v) All follow-up tests and schedules for follow-up tests. (2) You must keep records for three years of information obtained from previous employers under § 40.25 concerning drug and alcohol test results of employees. (3) You must keep records of the inspection, maintenance, and calibration of EBTs, for two years. (4) You must keep records of negative and cancelled drug test results and alcohol test results with a concentration of less than 0.02 for one year. (b) You do not have to keep records related to a program requirement that does not apply to you (e.g., a maritime employer who does not have a DOT-mandated random alcohol testing program need not maintain random alcohol testing records).
Official text (excerpt) · as of 2026-07-28 · Read the full section at ecfr.gov
United States Code Title 6
§ 468Preserving Coast Guard mission performanceIn force
There are transferred to the Department the authorities, functions, personnel, and assets of the Coast Guard, which shall be maintained as a distinct entity within the Department, including the authorities and functions of the Secretary of Transportation relating thereto. Notwithstanding any other provision of this chapter, the authorities, functions, and capabilities of the Coast Guard to perform its missions shall be maintained intact and without significant reduction after the transfer of the Coast Guard to the Department, except as specified in subsequent Acts. No mission, function, or asset (including for purposes of this subsection any ship, aircraft, or helicopter) of the Coast Guard may be diverted to the principal and continuing use of any other organization, unit, or entity of the Department, except for details or assignments that do not reduce the Coast Guard’s capability to perform its missions. The Secretary may not substantially or significantly reduce the missions of the Coast Guard or the Coast Guard’s capability to perform those missions, except as specified in subsequent Acts.
Official text (excerpt) · as of 2026-07-28 · Read the full section at uscode.house.gov
Cited in 10 court opinionsMost recently applied by a court: 2026
Leading cases: Masias v. Secretary of Health and Human Services (Court of Appeals for the Federal Circuit 2011, 634 F.3d 1283) · Michael P. Gaffney, Thomas Bell, Edward Anderson v. Riverboat Services of Indiana, Incorporated, Riverboat Services, Incorporated, Robert Heitmeier v. Showboat Marina Casino Partnership, Showboat, Incorporated, Showboat Indiana, Incorporated (Court of Appeals for the Seventh Circuit 2006, 451 F.3d 424) · Dresser v. MEBA MEDICAL & BENEFITS PLAN (Court of Appeals for the Fifth Circuit 2010, 628 F.3d 705)
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
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Sources and References
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- HHS: Health Insurance Portability and Accountability Act (HIPAA)(hhs.gov).gov
- 45 CFR 160.103, Definitions of Covered Entity and Protected Health Information (Cornell LII)(law.cornell.edu)
- ADA National Network: Is Testing for the Illegal Use of Drugs Permissible Under the ADA?(adata.org)
- SAMHSA: Employer Resources, Drug Testing Federal Laws and Regulations(samhsa.gov).gov
- EEOC: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions(eeoc.gov).gov
- 45 CFR 164.512, Permitted Uses and Disclosures Without Authorization (Cornell LII)(law.cornell.edu)
- EEOC: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA(eeoc.gov).gov
- National Conference of State Legislatures: Cannabis Overview(ncsl.org)
- Marijuana Policy Project: Cannabis Legalization and Employment Protections(mpp.org)
- NRS 613.132: Nevada Limits on Refusing to Hire Based on a Pre-Employment Marijuana Screening Test(leg.state.nv.us).gov
- 49 CFR 40.333, DOT Drug and Alcohol Testing Record Retention (Cornell LII)(law.cornell.edu)
- 49 CFR 391.23, Investigation of a Commercial Driver's Preceding Three Years of DOT Drug and Alcohol Testing History (Cornell LII)(law.cornell.edu)
- 49 CFR 40.25, Two-Year Lookback: Obtaining an Employee's DOT Drug and Alcohol Testing Information From Previous Employers (Cornell LII)(law.cornell.edu)
- 49 CFR 40.191, What Is a Refusal to Take a DOT Drug Test, and What Are the Consequences? (Cornell LII)(law.cornell.edu)
- 49 CFR 40.285, When Is a Substance Abuse Professional Evaluation Required? (Cornell LII)(law.cornell.edu)
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- FMCSA Drug and Alcohol Clearinghouse(clearinghouse.fmcsa.dot.gov).gov
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