Pre-Employment Alcohol
Testing
QUESTION: Rev. 09/01.
Can an employer wishing to conduct pre-employment
alcohol testing, do so?
ANSWER:
- A DOT-regulated employer (except under
USCG and RSPA rules) wishing to conduct pre-employment
alcohol testing under DOT authority may do so
if certain conditions are met.
- The testing must be accomplished for all
applicants (i.e., the employer cannot select for
testing some applicants and not others) and the
testing must be conducted as a post-offer requirement
(i.e., the employer needs to inform the applicant
that he or she has the job if he or she passes
a DOT alcohol test).
- In addition, the testing and its consequences
must comply with requirements of Part 40.
Top
§40.3
QUESTION: Rev. 09/01.
Can the employer himself or herself act as a Designated
Employer Representative (DER), as opposed to appointing
another employee to play this role?
ANSWER:
- The employer (e.g., the owner of a small
business) may act personally as the DER.
- The employer may also appoint an employee
or employees to play this role.
- The DER must exercise his or her authority
to remove an employee from safety sensitive functions
either directly or by causing the employee to
be removed from performing these functions (e.g.,
by having the employee’s supervisor effect
the actual removal).
- The employer may not delegate the DER
role to a service agent. Only the employer or
an actual employee of the employer may perform
this function.
- The Department will not authorize a “DER-for-hire”
concept (e.g., a person under contract by several
companies to serve as their DER), either.
§40.3; §40.15(d)
QUESTION: Rev. 09/01.
If a C/TPA is hired as an “independent safety
consultant” that executes all aspects of
the employer’s safety and drug and alcohol
testing programs, can the C/TPA act as a DER?
ANSWER:
- Service agents are prohibited from acting
as DERs under any circumstances.
- The fact that an organization that is
called an “independent safety consultant”
acts as a consultant to an employer for purposes
of executing a drug and alcohol testing or safety
program does not make it any less a service agent.
It is still prohibited from acting as a DER.
Top
§40.21
QUESTION: Rev. 09/01.
Can union hiring halls, driver-leasing companies,
and other entities have a stand-down policy, or
is the ability to obtain a waiver for this purpose
limited to actual employers?
ANSWER:
- The rule permits “employers”
to apply for a stand-down waiver. It does not
permit any other entity to do so.
- Only entities that are viewed as “employers”
for purposes of DOT agency drug and alcohol testing
regulations can apply for stand-down waivers.
If a DOT agency rule provides that hiring halls,
leasing agencies, etc. are treated as employers,
such organizations could apply for a stand-down
waiver.
Top
§40.21
QUESTION: Rev. 09/01.
Does an employer need a stand-down waiver in order
to implement a policy that requires employees
to cease performing safety-sensitive functions
following a reasonable suspicion or post-accident
test?
ANSWER:
- §40.21 requires an employer to obtain
a waiver to do one very specific thing: remove
employees from performance of safety-sensitive
functions on the basis of the report of confirmed
laboratory test results that have not yet been
verified by the MRO.
- An employer does not need a §40.21
waiver to take other actions involving the performance
of safety-sensitive functions.
- For example, an employer could (if it
is not prohibited by DOT agency regulations and
it is consistent with applicable labor-management
agreements) have a company policy saying that,
on the basis of an event (e.g., the occurrence
of an accident that requires a DOT post-accident
test, the finding of reasonable suspicion that
leads to a DOT reasonable suspicion test), the
employee would immediately stop performing safety-sensitive
functions. Such a policy, which is not triggered
by the MRO’s receipt of a confirmed laboratory
test result, would not require a §40.21 waiver.
- It would not be appropriate for an employer
to remove employees from performance of safety-sensitive
functions pending the result of a random or follow-up
test, since there is no triggering event to which
the action could rationally be tied.
Top
§40.25
QUESTION: Rev. 06/04.
Will FMCSA-and FAA-regulated employers complying
with the drug and alcohol information records
check requirements contained in the Federal Motor
Carrier Safety Administration (FMCSA) regulation
49 CFR Part 391 and the Federal Aviation Administration
(FAA) Pilot Record Improvement Act be considered
compliant with 40.25?
ANSWER:
- Yes. Employers who are required by and
who comply with the FMCSA’s three-year requirement
for obtaining and providing employee drug and
alcohol testing information are considered to
have satisfied the two-year requirement contained
in 40.25.
- Likewise, employers who are required by
and who comply with the FAA’s five-year requirement
for obtaining and providing employee drug and
alcohol testing information are considered to
have satisfied the two-year requirement contained
in 40.25.
- These employers do not need to seek separately
the 40.25 information if the employer adheres
to the FMCSA and FAA regulations, as appropriate,
for obtaining an employee’s prior drug and
alcohol testing information.
QUESTION: Rev. 01/02.
If an applicant admits to testing positive on
or refusing to take a pre-employment test within
the past two years, must the applicant be held
out of safety-sensitive duties if he or she did
not complete the return-to-duty process (i.e.,
the SAP process)?
ANSWER:
- If the applicant admits that he or she
had a positive or a refusal to test result on
a pre-employment test, the employer is not permitted
to use the applicant to perform safety-sensitive
duties until and unless the applicant documents
successful completion of the return-to-duty process.
- This Part 40 requirement applies whether
or not the pre-employment positive or refusal
occurred before, on, or after August 1, 2001.
- Should no proof exist that the return-to-duty
process was successfully complied with by the
applicant, a current return-to-duty process must
occur before the individual can again perform
safety-sensitive functions.
QUESTION: Rev. 09/01.
When an employer is inquiring about an applicant’s
previous DOT drug and alcohol test results, is
the employer required to send the inquiry via
certified mail?
ANSWER:
- No. Certified mail is not required.
- The employer can make this inquiry through
a variety of means, including mail (certified
or not), fax, telephone, or email.
- However, the employer must provide the
former employer the signed release or a faxed
or scanned copy of the employee’s signed
release.
- The former employer must respond via a
written response (e.g., fax, letter, email) that
ensures confidentiality.
- The employer should document an attempt
or attempts to contact and contacts with previous
employers, no matter how they were made, so that
it can show a good faith effort to obtain the
required information.
QUESTION: Rev. 09/01.
When a previous employer receives an inquiry from
a new employer for drug and alcohol testing information,
does the previous employer provide information
it may have received from other employers in the
past?
ANSWER:
- As an employer, when you receive an inquiry
about a former employee, you must provide all
the information in your possession concerning
the employee’s DOT drug and alcohol tests
that occurred in the two years preceding the inquiry.
- This includes information you received
about an employee from a former employer (e.g.,
in response to the Federal Motor Carrier Safety
Administration’s pre-employment inquiry requirement).
- It is not a violation of Part 40 or DOT
agency rules if you provide, in addition, information
about the employee’s DOT drug and alcohol
tests obtained from former employers that dates
back more than two years ago.
- If you are an employer regulated by the
FAA, this does not impact your requirements under
the Pilot Record Act.
Top
§40.33; 40.121; 40.213;
40.281
QUESTION: Rev. 01/02.
Because Part 40 requires collectors, MROs, BATs
and STTs, and SAPs to maintain their own training
records, can employers or training entities refuse
to provide these service agents their training
records?
ANSWER:
- No. Employers and trainers who provide
training for these service agents must not withhold
training documentation from them when they have
successfully completed the training requirements.
- If a collector, BAT, STT, MRO, or SAP
is not in possession of training documentation,
he or she is in violation of Part 40.
- Therefore, Part 40 does not permit the
withholding of such documentation from these service
agents.
§40.33
QUESTION: Rev. 01/02.
Is error correction training required if a drug
test is cancelled due to a specimen having an
insufficient amount of urine?
ANSWER:
- If the laboratory finds there is an insufficient
amount of urine in the primary bottle for analysis,
the laboratory will report to the MRO that the
specimen is “rejected for testing” (unless
the laboratory can redesignate the specimens).
Subsequently, the MRO must cancel the test.
- The MRO should seek to determine (with
the assistance of the laboratory) if the specimen
leaked in transit or if not enough urine was collected.
- Specimen leakage while in transit to a
laboratory will not cause a cancellation requiring
the collector to have error correction training.
- If the laboratory finds no evidence of
leakage, indications would be strong that the
collector failed to collect the appropriate amount
of urine. If this were the case, the collector
would need error correction training.
- If specimen leakage is a recurrent problem
for a collection site, the MRO may be wise to
inquire whether or not the shipping containers
used are sufficient to adequately protect the
specimens or whether or not collectors are securing
the bottle lids properly.
QUESTION: Rev. 09/01.
If a collector makes a mistake resulting in a
cancellation of a test before he or she has obtained
qualification training (e.g., in the period before
January 31, 2003), does he or she have to obtain
error correction training under §40.33(f)?
ANSWER:
- Yes. If a collector makes a mistake that
causes a test to be cancelled, the collector must
undergo error correction training (even if the
collector has yet to undergo qualification training).
There are no exceptions to this requirement.
QUESTION: Rev. 09/01.
A collector who is notified that he or she made
a mistake has 30 days in which to obtain error
correction training. Can the collector continue
to perform DOT collections during this 30-day
period?
ANSWER:
- Yes. A collector may continue to perform
DOT collections during this period.
- After 30 days have elapsed following the
notification to the collector of the need to obtain
error correction training, the collector is no
longer qualified to conduct DOT collections until
and unless he or she has successfully completed
error correction training.
- As provided in §40.209(b)(3), collection
of a specimen by a collector who has not met training
requirements does not result in the cancellation
of the test, assuming the collection is otherwise
proper. However, use of an unqualified collector
can result in enforcement action.
QUESTION: Rev. 09/01.
Who is responsible for notifying a collector that
error correction training is needed?
ANSWER:
- The MRO, in canceling a drug test, will
determine if the collector is at fault.
- When the MRO reports the cancelled test
to the employer, the MRO will note the reason
for the cancellation and that, if appropriate,
it was the result of collector error.
- The employer or service agent (e.g., MRO,
C/TPA) designated by the employer is responsible
for notifying the collection site of the error
and the retraining requirement; and for ensuring
that the training takes place.
QUESTION: Rev. 09/01.
Must collectors, BATs, STTs, MROs, and SAPs maintain
documentation of meeting training requirements
on their persons?
ANSWER:
- These individuals are responsible for maintaining
documentation that they currently meet all training
requirements (see, for example, §40.33(g)).
- However, they are not required to keep
this documentation on their person.
- They must be able to produce this documentation
within a short, reasonable time of a request by
a DOT representative or an employer.
- Nothing precludes an organization (e.g.,
a collection site) from also maintaining a file
of the training records of its personnel, if it
wishes to do so.
QUESTION: Rev. 09/01.
What does the rule require with respect to the
qualifications of persons who train collectors?
ANSWER:
- Part 40 does not specify any set of specific
qualifications for persons who train collectors.
- The training must cover the items required
by Part 40.
QUESTION: Rev. 09/01.
Does a person who monitors proficiency demonstrations
as a part of collector qualification training
have to be a qualified collector?
ANSWER:
- Yes. It is very important for persons who
monitor mock collections to have a thorough “book”
and practical knowledge of relevant DOT rules
and procedures. It is also very important that,
before determining whether trainees have successfully
completed a proficiency demonstration, the monitor
have experienced and successfully completed the
same training that collectors have to undergo.
- Consequently, mock collection monitors
have to meet collector qualification training
requirements. In addition, the monitor must meet
any one of three other requirements:
- * The monitor can be a qualified collector who
has regularly conducted DOT drug testing collections
for a least a year before serving as a monitor;
or
- * The monitor can be a qualified collector who
has had a “train-the-trainer” course.
Such a course could include the mandatory elements
of collector qualification training as well as
instruction on how to conduct training effectively;
or
- * The monitor can be a qualified collector who
has conducted collector training under Part 40
for at least a year before serving as a monitor.
- Monitors in the second and third categories
do not need to practice actively as collectors,
so long as they have met collector qualification
requirements.
- Individuals acting as collectors prior
to August 1, 2001, have until January 31, 2003,
to meet qualification training requirements. In
the meantime, such collectors can serve as monitors
even though they may not have met the qualification
and mock collection requirements (so long as they
meet any one of the three other requirements).
Top
§40.35; 40.45;
40.345
QUESTION: Rev. 09/01.
How should the employer’s decision to have
a C/TPA act as intermediary in the handling of
drug test results be documented?
ANSWER:
- When an employer chooses to use the C/TPA
as the intermediary in the transmission of the
MRO’s verified drug test results, this decision
should be communicated from the employer to the
MRO and the C/TPA.
- We advise the MRO to obtain some documentation
of the employer’s decision prior to sending
results through the C/TPA.
- Documentation could be in the form of
a letter, an email, or record of a telephone conversation
with the employer.
- DOT also recommends that MROs maintain
listings of the names, addresses, and phone numbers
of C/TPA points of contact.
Top
§40.45
QUESTION: Rev. 01/02.
Where can billing information be entered onto
the Federal Drug Testing Custody and Control Form
(CCF)?
ANSWER:
- 40.45(c)(1) states that the CCF my include
billing information if the information is in the
area outside the border of the form.
- Therefore, if account codes or collection
site codes are entered, they must be placed outside
the border, only.
- CCFs with this information pre-printed
inside the border (i.e., in the Step 1 box) may
be used until the supply of these forms is exhausted.
CCFs produced or re-ordered after February 15,
2002, must not have this information inside the
border.
- No corrective action is needed nor will
a result be impacted if the CCF contains this
information inside the border. However, employers
and service providers may be subject to enforcement
action if this requirement is not met.
QUESTION: Rev. 01/02.
What actual address is required for “Collection
Site Address” in Step 1 of the CCF, and what
telephone number should the collector provide?
ANSWER:
- The collection site address should reflect
the location where the collection takes place.
If the collection takes place at a clinic, the
actual address of that clinic should be used:
not a corporate or a “main office”address
of the clinic/collection company.
- If the collection takes place on-site
at the employer’s place of business (e.g.,
a bus terminal, a rail yard), the actual address
of the employer site should be used.
- If the collection takes place in a “mobile
unit” or takes place at an accident site,
the collector should enter the actual location
address of the collection (or as near an approximation
as possible, under the circumstances).
- The required collector telephone number
should be the number at which it is most likely
that the laboratory, MRO, or employer, if necessary,
may contact the collector and the collector’s
supervisor.
- Pre-printing certain information onto
the CCF is problematic if the information is subject
to change.
QUESTION: Rev. 01/02.
Can a collector mark through pre-printed employer,
MRO, collection site, and/or laboratory information
on the CCF if that information is not accurate
for a particular collection?
ANSWER:
- Yes. When the collector has no “blank”
CCFs and the CCFs on-hand contain inaccurate pre-printed
employer, MRO, collection site, and/or laboratory
information, the collector is permitted to “line
through” the inaccurate information and insert
legibly the proper information.
- The likelihood of a collection site having
CCFs with inaccurate information increases with
unexpected collection events (e.g., employee arrives
unannounced for post-accident testing).
- If the specimen will be sent to a laboratory
different than the one pre-printed on the available
CCF, it becomes important for the collector to
modify the CCF so that it reflects the name and
address of the laboratory to which the specimen
will actually be sent. It is also important for
the collector to line through any pre-printed
billing code and insert the appropriate one, if
it is available.
- Finally, laboratories should honor collection
site requests to provide an adequate number of
“blank” CCFs for use during unexpected
collection events. It is important to note that
the DOT permits overprinting or pre-printing of
CCFs in an effort to streamline the entire testing
process, not to limit the distribution of the
forms to collection sites.
QUESTION: Rev. 09/01.
May the MRO’s address entered on the CCF
be a post-office box number only?
ANSWER:
- No. The address must contain at least a
number and street address.
- The reason for this requirement is that
CCFs are often delivered by courier or messenger
services who do not deliver items to post office
box addresses.
- The post-office box can be included, but
not in lieu of the number and street address.
Top
§40.61
QUESTION: Rev. 09/01.
May a DOT urine specimen be obtained via catheterization
from a patient who is catheterized as part of
a medical procedure or who is unconscious?
ANSWER:
- No one is ever permitted to obtain a urine
specimen for DOT testing purposes from an unconscious
individual, whether by catheterization or any
other means.
- No one is permitted to catheterize a conscious
employee for the purpose of collecting urine for
a DOT drug test.
- However, if a person has been catheterized
for medical purposes (e.g., a conscious, hospitalized
patient in a post-accident test situation), it
is permissible to use urine collected by this
means for DOT testing purposes. All necessary
documentation for a DOT collection must be provided
(e.g., the CCF).
- In addition, an employee who normally
voids through self-catheterization is required
to provide a specimen in that manner.
Top
§40.65
QUESTION: Rev. 09/01.
Part 40 directs the collector to discard the first
specimen if the temperature was out of range or
the specimen showed signs of tampering and the
employee refused to provide a second specimen
under direct observation. The Urine Specimen Collection
Guidelines [at Section 8, Directly Observed Collection,
Number 7] indicate that, in such a situation,
the first specimen should be retained and sent
to the laboratory. Which requirement is correct?
ANSWER:
- When a specimen is out of temperature range
or shows signs of tampering and the employee refuses
to provide a second specimen under direct observation,
it is considered a refusal to test. The collector
does not retain the first specimen, but discards
it.
- The requirement in the Urine Specimen
Collection Guidelines, Version 1.0, to retain
the specimen and send it to the laboratory, was
inserted inadvertently.
- Urine Specimen Collection Guidelines,
Version 1.01, contain the proper procedures as
directed by 40.65.
Top
§40.67; §40.69
QUESTION: Rev. 09/01.
Can the monitor (or direct observer) of a collection
be a co-worker or immediate supervisor of the
employee?
ANSWER:
- The immediate supervisor of a particular
employee may not act as the collector when that
employee is tested, unless no other collector
is available and the supervisor is permitted to
do so under a DOT operating administration’s
drug and alcohol regulation.
- The immediate supervisor may act as a
monitor or observer (if same gender) if there
is no alternate method at the collection site
to conduct a monitored or observed collection.
- An employee who is in a safety-sensitive
position and subject to the DOT drug testing rules
should not be a collector, an observer, or a monitor
for co-workers who are in the same testing pool
or who work together with that employee on a daily
basis.
Top
§40.73; §40.193
QUESTION: Rev. 09/01.
What is the preferred method for the collector
to get the MRO copy of the CCF to the MRO?
ANSWER:
- The promptness of reporting suffers when
the mail is used to convey the MRO copy from the
collection site.
- Even though we permit other means (e.g.,
overnight courier service) of transmitting MRO
copies from the collection site to the MRO, collectors
should fax the MRO copies when possible.
- If the faxed copy is not legible, the
MRO must request another faxed copy or a hard
copy.
Top
§40.83
QUESTION: Rev. 01/02.
If the primary laboratory must redesignate bottle
B for bottle A, can the laboratory test the specimen
if only 15 mL of urine is present in the redesignated
bottle A?
ANSWER:
- The Department permits specimen redesignation
only in limited circumstances – one such
occurrence would be if the A specimen has leaked
in transit, leaving only the B specimen to be
tested.
- In such a case, the laboratory should
test the redesignated specimen despite the fact
that, under normal circumstances, a sufficient
amount of specimen would not have been available
for testing.
Top
§40.97
QUESTION: Rev. 01/02.
Must a certifying scientist’s signature be
on Copy 1 of the CCF if the drug test result is
negative?
ANSWER:
- The certifying scientist’s signature
must be on Copy 1 of the CCF for non-negative
results only.
- Therefore, the certifying scientist may
simply initial (and date) the CCF when the test
result is negative.
§40.97; §40.209
QUESTION: Rev. 09/01.
After the laboratory reports a test result, someone
(e.g., the employer, a service agent) discovers
that the CCF listed the wrong reason for the test
(e.g., the CCF says the test was a pre-employment
test when it was actually a random test). How
is this corrected and by whom?
ANSWER:
- This is another example of an error that
does not have a significant adverse effect on
the right of an employee to have a fair and accurate
test (see §40.209).
- The test is not cancelled as the result
of such a mistake.
- While concerned parties may wish to correct
the faulty description of the reason for the test,
Part 40 does not require a correction to be made.
- Employers or their designated service
agents should ensure that appropriate changes
are documented (e.g., for MIS reporting purposes).
Top
§40.103
QUESTION: Rev. 01/02.
Must an employer or C/TPA who is required to submit
blind specimens to laboratories send adulterated
or substituted blinds if the employer or C/TPA
is not yet having specimens undergo validity testing?
ANSWER:
- At the present time, validity testing remains
an employer option.
- Therefore, if an employer or C/TPA required
to submit blind specimens is not conducting validity
testing during the course of its normal testing,
the employer or C/TPA needs not send adulterated
or substituted blind specimens to the laboratories
used.
- However, if an employer or C/TPA conducts
validity testing, adulterated or substituted blind
specimens must be sent to the laboratories used.
- Part 40 requires that approximately 75
percent of the blinds must be blank (i.e., containing
no drugs, nor adulterated or substituted); 15
percent must be positive for one or more drugs;
and 10 percent must be adulterated or substituted.
- If the employer or C/TPA is not exercising
the option to conduct validity testing, approximately
75 percent of blinds must be blank and 25 percent
must be positive for one or more drugs.
QUESTION: Rev. 09/01.
Requirements for submitting quarterly blind specimens
to the laboratory went into effect mid-quarter,
August 1, 2001. How are the new requirements for
blind sample submission to be calculated? Are
the blinds for July, 2001 to be calculated on
the old Part 40 regulations and August and September,
2001 blind calculations based on new Part 40 regulations?
ANSWER:
- It is acceptable to send in blind specimens
for July 2001, based on the requirements of the
old Part 40 and for August-September based on
the new Part 40 that went into effect August 1,
2001.
§40.103; §40.99; §40.333
QUESTION: Rev. 09/01.
What are the retention requirements for blind
specimens and records of blind specimen tests?
ANSWER:
- Laboratories, employers and other parties
required to retain specimens and records of tests
should retain blind specimens and records of blind
specimen tests in exactly the same way and for
the same periods of time as they do actual employee
specimens and test records.
- For example, an employer would keep a
record of a blind positive test for five years
and a blind negative test for two years.
- Laboratories would keep blind specimens
for negatives in accordance with their SOPs and
non-negatives for one year.
Top
§40.127
QUESTION: Rev. 09/01.
How should the MRO’s review of negative results
processed by the MRO’s staff take place?
ANSWER:
- The MRO’s personal review of the MRO’s
staff work (to include the CCFs, lab results documentation,
corrective documents, and results reports to employers)
should be spread throughout the quarter.
- Even if the MRO has reviewed the required
500 per quarter, the MRO must still review all
those that needed corrective actions.
- The MRO need not review a sampling from
all employers or transportation industries he
or she serves.
- The MRO must provide documentation of
the CCF quality assurance review to DOT agency
representatives regardless of their DOT agency
affiliation (e.g., an FRA inspector can obtain
and review documents generated from an FAA-sanctioned
test). Part 40 is a One-DOT effort.
Top
§40.131
QUESTION: Rev. 01/02.
Is it appropriate for the MRO to attempt to contact
the employee after normal office hours?
ANSWER:
- Yes. Copy 2 of the CCF contains spaces
for the employee’s daytime and evening telephone
numbers. We expect MROs or their staffs to attempt
to contact the employee at the evening phone number
if the employee is not available at the daytime
number.
QUESTION: Rev. 01/02.
May the MRO report an “interim” or “preliminary”
test result to the employer (or C/TPA) while awaiting
receipt of the MRO copy and/or the laboratory
result?
ANSWER:
- No. An MRO must not report tests results
until and unless he or she has received all required
information from the collection site and laboratory.
- This means the MRO must have Copy 2 or
a legible copy of Copy 2 (or any legible copy
of a CCF page signed by the employee) and must
have the drug test result (sent in the appropriate
manners for negatives and non-negatives) from
the laboratory.
- An MRO sending “in-progress”
negative or non-negative results will be considered
to be in violation of Part 40.
QUESTION: Rev. 09/01.
Must an MRO use the full 24-hour period to contact
the donor if the MRO is sure that the donor is
not and will not be available at the phone numbers
provided by the donor?
ANSWER:
- 40.131(a)(1) states that if the phone numbers
provided by the donor are wrong, an MRO may contact
the DER to inform the donor to contact the MRO
without waiting the full 24 hours.
- If the MRO discovers that phone numbers
provided by the donor will not permit the MRO
to contact the donor within the 24-hour period,
the MRO may contact the DER immediately. For example,
the MRO may discover that the employee is not
expected to be available for another five days
at the number provided.§40.163
Top
§40.149
QUESTION: Rev. 09/01.
Can arbitrators change or overturn the MRO’s
determination about the verification of a test
result?
ANSWER:
- No. The MRO is the only person authorized
to change a verified test result (see §40.149(c)).
The MRO can do so with respect to a verification
decision he or she has made, in the circumstances
described in §40.149.
- An arbitrator is someone who derives his
authority from the employer, or from a labor-management
agreement. The arbitrator cannot exercise authority
that the employer could not exercise on its own.
The arbitrator could not overturn a decision of
the MRO concerning a test verification any more
than the employer could on its own.
- This prohibition applies to substantive
decisions the MRO makes about the merits of a
test (e.g., with respect to whether there is a
legitimate medical explanation for a positive,
adulterated, or substituted test result or whether
a medical condition precluded an individual from
providing a sufficient specimen).
- An arbitrator could determine that a test
result should be cancelled because of a defect
in the drug testing process involving the MRO
(e.g., that the MRO failed to afford the employee
the opportunity for a verification interview).
But an arbitrator could not overturn the substantive
judgment of the MRO about whether, for example,
the information submitted by the employee constituted
a legitimate medical explanation.
§40.149; §40.209
QUESTION: Rev. 09/01.
What is an employer to do if an arbitrator’s
decision claims to overturn the result of a DOT
drug or alcohol test on grounds contrary to DOT
regulations?
ANSWER:
- There could be instances in which an arbitrator
makes a decision that purports to cancel a DOT
test for reasons that the DOT regulation does
not recognize as valid.
- For example, the arbitrator might make
a decision based on disagreement with an MRO’s
judgment about a legitimate medical explanation
(see §40.149) or on the basis of a procedural
error that is not sufficient to cancel a test
(see §40.209).
- Such a test result remains valid under
DOT regulations, notwithstanding the arbitrator’s
decision. Consequently, as a matter of Federal
safety regulation, the employer must not return
the employee to the performance of safety-sensitive
functions until the employee has completed the
return to duty process.
- The employer may still be bound to implement
the personnel policy outcome of the arbitrator’s
decision in such a case. This can result in hardship
for the employer (e.g., being required to pay
an individual at the same time as the Department’s
rules prevent the individual from performing the
duties of his job).
Top
§40.163
QUESTION: Rev. 09/01.
Is it acceptable for an MRO to transmit a number
of reports of drug test results per page to the
employer, rather than one per page?
ANSWER:
- The Department recommends that MROs use
Copy 2 of the CCF as the means of reporting all
drug test results to employers.
- However, if you use a written report (all
results) or an electronic report (negative results)
meeting all the requirements of §40.163,
rather than using Copy 2 of the CCF for this purpose,
you must put only one such report on each page.
This will help to prevent inadvertent breaches
of confidentiality by the employer resulting from
photocopying a multiple-result report and putting
a copy in the file of each employee involved.
QUESTION: Rev. 09/01.
If the MRO uses a written report instead of a
copy of the CCF to report results to employers,
how should those reports be signed?
ANSWER:
- The MRO must sign all reports of non-negative
results (i.e., positives, refusals, tests canceled,
and invalids).
- The MRO or an MRO’s staff member
may rubber stamp and initial negative results.
The rubber stamp should identify the MRO.
- Each written report should be dated and
indicate the address of the MRO.
Top
§40.171
QUESTION:R ev. 01/02.
Can someone other than the employee direct that
an MRO have the employee’s split specimen
tested?
ANSWER:
- No. Because the split specimen exists to
provide the employee with “due process”
in the event that he or she desires to challenge
the primary specimen’s results, only the
employee can request that the split specimen be
tested.
- In addition, an employer or a union (or
other labor representative) may not act on the
behalf of the employee in requesting that the
split specimen be tested.
- The employee must make the request directly
to the MRO.
QUESTION:Rev. 01/02.
Can a split specimen be sent to a second laboratory
that is under the same corporate title as the
primary laboratory?
ANSWER:
- Yes. The rule requires the split to be
tested at a different or second HHS-certified
laboratory. For example, if the primary specimen
was tested at XYZ Laboratory in Dallas, TX, the
split specimen may be sent to XYZ Laboratory in
Chicago, IL.
- HHS certifies each laboratory separately
and on its own merits. Laboratories on the HHS
listing of certified laboratories, even those
under the same corporate title, are individually
certified and are considered separate and unique
from one another.
QUESTION:Rev. 01/02.
Can the MRO require an employee’s split specimen
test request to be in writing rather than verbal?
ANSWER:
- 40.171(a) states that the employee’s
request may be verbal or in writing. Therefore,
the MRO must accept a verbal request.
- The MRO may ask the employee for written
documentation, but must immediately honor the
verbal request.
- An MRO should always document whether
or not an employee requested to have the split
tested.
- The MRO must document the date and time
of the employee’s request.
Top
§40.187
QUESTION: Rev. 06/04.
What must an MRO do when he or she determines
that there is no split laboratory capable of testing
the adulterant identified by the primary laboratory
after the employee has asked for the split to
be tested?
ANSWER:
The Department views this situation a closely
paralleling the MRO reporting requirement, at
40.187 (d), when the split specimen is not available
for testing after the request to test the split
is made by the employee. Therefore, the MRO needs
to follow similar steps.
- The MRO must first report to the employer
that the specimen, “Failed to Reconfirm:
Split Laboratory not Available for Testing.”
- The MRO must also report to the DER and
the employee that the test result must be cancelled
and the reason for the cancellation.
- The MRO must direct the DER to ensure
the immediate collection of another specimen from
the employee under direct observation, with no
notice given to the employee of this collection
requirement until immediately before the collection.
- Finally, the MRO must notify ODAPC of
the failure to confirm.
The result of the collection under direct observation
will be the result of record for this testing
event.
Top
§40.191; §40.193
QUESTION: Rev. 09/01.
Do collectors sign the CCF in situations in which
a urine specimen is not provided during a collection
(i.e., a refusal to provide a specimen; a shy
bladder situation)?
ANSWER:
- In any such case, the collector would check
the box in Step 2 of the CCF indicating that no
specimen was provided and enter an explanatory
remark.
- The collector would then provide his or
her name and signature in Step 4 of the CCF.
- The employee’s name and phone number
should be included on the MRO copy.
- The collector would then transmit the
CCF copies to the appropriate parties (e.g., employer,
MRO).
Top
§40.193; 40.265
QUESTION: Rev. 01/02.
Do the five days within which an employee is given
to obtain a medical evaluation after providing
an insufficient amount of urine or breath include
holidays and weekends, or does this refer to five
business days?
ANSWER:
- The five-day limit for obtaining an examination
by a licensed physician refers to business days.
- Therefore, holidays and weekend days should
not be included in the 5-day time frame.
§40.193; §40.43
QUESTION: Rev. 09/01.
Generally, only one collector is supposed to supervise
a collection for an employee. However, given the
time span involved, it is possible that two collectors
could be involved in a shy bladder collection
(e.g., because of a shift change during the three-hour
period between the first and second collection
attempts). How should this be handled?
ANSWER:
- In this situation, it is permissible for
one collector to turn the process over to another
collector to complete the collection.
- The first collector would document the
start time for the 3-hour period. The second would
provide his or her name and signature after the
second collection, as the collector of record.
The Remarks line (Step 2 of the CCF) would be
used to document the transition (including the
first collector’s name and the start time
for the shy bladder procedure).
Top
§40.197
QUESTION: Rev. 09/01.
May an employer have a policy of declining to
hire applicants who have a negative dilute test
result on a pre-employment drug test?
ANSWER:
- The Department’s rules do not require
an employer to hire anyone. That decision is an
employer’s.
- While §40.197(b) authorizes an employer
to obtain one additional test following a negative
dilute result (in pre-employment or other testing
situations), a negative dilute test result is
a valid negative test for DOT’s purposes.
- Because a negative dilute test result
is a negative test for DOT program purposes, the
employer is authorized to have the applicant begin
performing safety-sensitive functions.
- If the employer declines to hire the applicant
in this situation, the employer’s decision
is based solely on its own policy. The employer
cannot claim that its action is required or authorized
by DOT rules.
Top
§40.203
QUESTION: Rev. 09/01.
If a collector makes an error on a CCF and the
collector is not available to sign a corrective
statement (e.g., collector on vacation, no longer
with the company), can the collector’s supervisor
sign the corrective statement for the collector?
ANSWER:
- If the error was the use of a non-DOT form
(to include use of the old Federal CCF), the collector
or the collector’s supervisor may sign the
corrective statement explaining the circumstances
of why a non-DOT form was used.
- If the missing information is the printed
name and signature of the collector, neither the
collector nor the supervisor may supply the missing
information. This is a fatal, uncorrectable flaw.
- If the CCF contains the printed name of
the collector, but the signature is missing, the
collector or the collector’s supervisor may
attest that that collector performed the collection,
but did not sign his or her name.
- If the employee’s signature is omitted
and there is no notation in the “Remarks”
line, only the collector can provide the corrective
statement. The collector’s supervisor cannot
sign the corrective statement
Top
§40.213
QUESTION: Rev. 01/02.
Is error correction training required if an alcohol
test is cancelled due to equipment failure?
ANSWER:
- Normally, equipment failure will not require
the BAT to have error correction training.
- However, if it is determined that the
equipment failure was related to the BAT’s
failure to properly maintain equipment (e.g.,
the EBT), error correction training would be in
order.
- In addition, error correction would be
required if the BAT does not attempt to accomplish
the test following equipment failure using another
device – provided that another device was
reasonably available.
Top
§40.229; 40.23
QUESTION: Rev. 01/02.
Is an employer considered to be in compliance
with Part 40 if EBTs are not available within
30 minutes of an alcohol screening test location?
ANSWER:
- An employer is not considered to be in
compliance if an EBT is not available for use
within 30 minutes to confirm the screening test.
- However, there may exist unusual circumstances
(e.g., post-accident testing) in which an EBT
is not available within the appropriate time frame.
In such a case, the employer would not be considered
out of compliance with the regulation if documentation
exists showing a “good faith” effort
to get an EBT. [It is important to note that most
operating administrations give employers up to
8 hours to administer the appropriate alcohol
test following a qualifying accident.]
Top
§40.243; §40.253;
§40.275; Appendix G
QUESTION: Rev. 09/01.
Is it acceptable to affix printed alcohol test
results on the back of the Alcohol Testing Form
(ATF) rather than on the front?
ANSWER:
- §40.243(f) and §40.253(g) instruct
the BAT to affix the printout of the information
from the alcohol testing device to the designated
space on the ATF.
- The designated space on the ATF is on
the front of the form. That is where BATs and
STTs should affix the printouts.
- However, because the instructions on the
ATF also permit the printout to be affixed to
the back of the ATF, the Department has no objections
to having the printouts on the back of the ATF.
Top
§40.291; §40.293
QUESTION:
Suppose the SAP fails to make the required recommendation
for education and/or treatment of an employee
who has violated a DOT agency drug or alcohol
testing rule, and simply sends the employee back
to the employer for a return-do-duty (RTD) test.
What is the employer to do?
ANSWER:
- The employer should not administer an RTD
test under these circumstances.
- The employer should refer the employee
back to the SAP with direction to prescribe education
and/or treatment and conduct a re-evaluation of
the employee to determine whether the employee
has successfully complied with the SAP’s
instructions.
- If the employer has compounded the problem
by having conducted the RTD test and returned
the employee to safety-sensitive duties (i.e.,
only realizes that a mistake has been made some
time after the fact), the employer should work
with the SAP to “go back and do it right.”
- This means that the employee should be
removed from performance of safety-sensitive functions,
referred back to the SAP for an education and/or
treatment prescription, and re-evaluated by the
SAP for successful compliance. Following the receipt
of a successful compliance report from the SAP,
the employer would conduct another RTD test before
returning the employee to performance of safety-sensitive
functions.
Top
§40.307
QUESTION: Rev. 01/02.
May an employer conduct follow-up testing under
company authority that goes beyond the follow-up
testing which the SAP determines necessary?
ANSWER:
- No. The regulation (at 40.307(d)(4)) and
SAP guidelines state that employers must not impose
additional testing requirements that go beyond
the SAP’s follow-up testing plan. This includes
additional testing requirements under company
authority.
- In addition to follow-up testing and random
testing, an employer has other means available
to ascertain an employee’s alcohol- and drug-free
performance and functions.
— The employer can choose to monitor the
employee’s compliance with the SAP’s
recommendations for continuing treatment and/or
education as part of a return-to-duty agreement
with the employee.
— The employer can conduct reasonable suspicion
testing if the employee exhibits signs and symptoms
of drug or alcohol use
— The employer can meet regularly with the
employee to discuss the employee’s continuing
sobriety and drug-free status.
- The Department is not opposed to an employer
discussing his or her desires for having more
than the minimum rule requirement (i.e., 6 tests
in the first year) for follow-up testing with
SAPs they intend to utilize.
Top
§40.311
QUESTION: Rev. 09/01
What is meant by “SAP’s own letterhead?”
ANSWER:
- By “SAP’s own letterhead”
we mean the letterhead the SAP uses in his or
her daily counseling practice.
- If the SAP is in private practice, the
SAP should use the letterhead of his or her practice.
- If the SAP works as an employee assistance
professional for an organization, the SAP should
use the employee assistance program’s letterhead.
- If the SAP works for a community mental
health service, the SAP should use the community
mental health service’s letterhead.
- The Department wants to avoid a SAP network
provider requiring the SAP to use the provider’s
letterhead rather than that of the SAP.
- The Department wants to avoid another
service agent contracting the SAP’s services
to require the contracted SAP to use the service
agent’s letterhead.
- The Department wants to avoid any appearance
that anyone changed the SAP’s recommendations
or that the SAP’s report failed to go directly
from the SAP to the employer.
- The Department does not want the SAP to
use a “fill-in-the-blanks” / “check-the-appropriate-boxes”
type of pre-printed form, including any that are
issued to the SAP by a SAP network provider, to
which the network or SAP would affix the SAP’s
letterhead information.
- The SAP must generate and complete all
information on the SAP report.
Top
§40.327
QUESTION: Rev. 09/01
If an MRO knows the identity of a physician responsible
for determining whether a DOT-regulated employee
is physically qualified to perform safety-sensitive
duties (e.g., under Federal Motor Carrier Safety
Administration regulations for physical qualifications
of motor carrier drivers) for another company,
can the MRO report drug test result as well as
medical information to that physician?
ANSWER:
- Under §40.327(a), an MRO must report
drug test results and medical information to third
parties without the employee’s consent, under
certain circumstances spelled out in the rule.
- Under §40.327(b), a physician responsible
for determining the medical qualifications of
an employee under an applicable DOT agency safety
regulation is a party to whom the MRO is instructed
to provide this information.
- Consequently, if an MRO knows the identity
of such a physician – even if the physician
performs this function for a different employer
– the MRO would provide the information.
The MRO is not required to affirmatively seek
out such physicians, however.
Top
§40.329
QUESTION: Rev. 01/02.
If an employee requests his/her records from the
MRO, do these records include the MRO’s notes
and comments or only copies of the CCF and laboratory
result?
ANSWER:
- In general, the MRO should provide all
records that are available related to that employee,
to include written notes, checklists, or comments.
All of this information was obtained from the
employee or from appropriate individuals or organizations
(with the employee’s authorization) or from
documentation provided by the employee.
- Consistent with appropriate medical record
constraints, the MRO may need to withhold or interpret
sensitive medical, psychiatric, and mental health
record information.
Top
§40.333
QUESTION:
When records are stored and transferred electronically,
how should they be made available to DOT representatives?
ANSWER:
- The obligations of employers and service
agents to make records available expeditiously
to DOT representatives apply regardless of how
the records are maintained.
- All records must be easily and quickly
accessible, legible, and formatted and stored
in a well-organized and orderly way.
- If electronic records do not meet these
criteria, then the employer or service agent must
convert them to printed documentation in a rapid
and readily auditable way.by the MRO’s receipt
of a confirmed laboratory test result, would not
require a §40.21 waiver.
- It would not be appropriate for an employer
to remove employees from performance of safety-sensitive
functions pending the result of a random or follow-up
test, since there is no triggering event to which
the action could rationally be tied.
Top
|
