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?
- 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.
May the previous employer delay sending an employee`s drug and alcohol testing information to the gaining employer pending payment for the cost of the information?
No. Part 40 specifically requires that previous employers immediately provide the gaining employer with the appropriate drug and alcohol testing information.
No one (i.e., previous employer, service agent [to include C/TPA], employer information / data broker) may withhold this information from the requesting employer pending payment for it.
Most, if not all, states have regulations that govern workplace testing. Due to the fact that there are 50 different sets of rules and that they are often dynamic in nature, Intoximeters tries to, but is not always up to date on the latest requirements for each and every state. Many companies consult with legal counsel specializing in employment law when establishing a company policy regarding drug/alcohol testing.
If your company is required to conduct drug and alcohol testing under one of the Federally mandated workplace alcohol testing programs (i.e.; the U.S. Department of Transportation, the Nuclear Regulatory Commission, or another federal agency regulation) it is probable that these federal regulations supersede state laws.
- If “Invalid – Color difference” is the only result reported to you, you must follow the guidance of §40.159 by contacting the laboratory to obtain more specific information about the color difference between the specimens, and contacting the donor to obtain a legitimate explanation for the color difference. While there is no legitimate medical reason for anyone being able to provide a specimen that separates into two different colors when placed in two different bottles, the interview is necessary to determine appropriate follow-on action.
- You must determine whether the donor has provided you with a legitimate explanation for the color difference (e.g., the collector used two separate voids for the collection), or not (e.g., no clue as to how the colors changed by the time the specimens reached the laboratory).
- You must follow §40.159 for canceling the result, reporting the result to the employer, determining whether a recollection is necessary and, if so, should it be under direct observation.
- If the laboratory has also reported to you that the specimen is positive, adulterated, or substituted, then you must process the results in accordance with §40.1129-131. If you determine (i.e., verifiy) the final result to be positive, adulterated, or substituted, then no additional action is required by you due to the color difference. You must not direct the employee to take another test.
- Notify the employer that the collector must receive “error correction training” as required by §40.33(f). The area of Part 40 in which the collector needs to be retrained is §40.65(a).
Upon downloading test results from certain Black Dot AlcoSensor IVs (AlcoSensor IV w/ memory units, also known as AS4Ms), the dates stored in the AlcoSensor IV Total Recall test result database may appear incorrect, even though the date and time on the printed test result at the time of the test is correct.
This article applies to the following Black Dot AlcoSensor IV firmware versions:
42.93,42.96. 42.98, 42.99, 43.99, 46.96, 46.97, 57.01, 57.02, 57.03, 57.04, 57.05, 57.06, 57.07, 57.08, 57.09, 57.10, 58.03, 58.04, 58.05, 58.06, 58.07, 58.08, 58.09, 58.10,58.11, 59.03, 59.05, 59.06, 59.08, 59.10, 60.04, 60.05, 60.06, 60.07, 60.08, 60.09, 60.10, 62.03, 66.05, 66.06, 66.07, 66.08, 66.11, 67.06, 68.03, 69.07, 69.08, 69.09, 69.10, 69.11, 70.08, 71.00, 71.01, 72.09,73.09, 74.09, 74.10, 75.10, 75.11, 75.12, 77.10, 77.11, 78.10, 79.10, 81.10, 81.11, 81.12, 82.10, 82.11, 82.12, 83.10, 83.11, 84.10, 85.10
A modification to the routine of setting the date/time will ensure the proper storage of the date and time. Essentially the solution requires that any time the MONTH, DAY, YEAR, HOUR or MINUTE are adjusted, the YEAR itself must also be adjusted, even if the display shows that it is set on the proper year.
For example, if Daylight Savings Time occurs and only the hour needs to be adjusted, when you scroll through the Month and Day (by pressing Switch 3 in the Battery Compartment) you then get to the Year which, as with Month and Day, appears to be set properly. However, YOU MUST cycle the year either up or down (using the Switch 1 and Switch 2 inside the battery compartment). Next, adjust the YEAR back to the current year before you press Switch 3 to accept that entry. Adjust the Hour and Minute appropriately.
If this procedure is followed, both displayed and stored memory will be set properly. However, it should be noted that you should use this process any time you change any of the Date or Time parameters (MONTH, DAY, YEAR, HOUR or MINUTE) unless you have your software updated.
As a further precaution, you may wish to download and erase previously stored tests, prior to time/date changes.
All future software versions in this family will have software that is modified so that it will not require an adjustment of the Year on each Time or Date set.
KEY WORDS: Black Dot AS4 AS4M Date Time Incorrect Total Recall
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?
- 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.
The Paperwork Reduction Act Burden Statement on the reverse sides of Copy 1 and Copy 2 has been updated to comply with current federal law.
There is a new DOT form number (DOT F 1380).
The instructions on the back of Copy 3 have been expanded to explain that tamper evident tape must not obscure the printed information on the EBT printout when the BAT attaches it to the form.
These changes were initiated in 2008 and finalized in 2010. To determine if you have the right forms, simply look at the bottom left side and verify that the revision date is 5/2008.
If you have not yet ordered new forms please visit our online store to make a purchase now.
Are employers and their service agents in the Department of Transportation (DOT) drug and alcohol testing program required to obtain employee written authorizations in order to disclose drug and alcohol testing information?
• In the DOT drug and alcohol testing program, employers and service agents are not required to obtain written employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard (USCG) drug and alcohol testing regulations. 49 CFR Part 40 and DOT Agency & USCG regulations provide for confidentiality of individual test-related information in a variety of other circumstances.
• Even if drug and alcohol testing information is viewed as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, it is not necessary to obtain employee written authorization where DOT requires the use or disclosure of otherwise protected health information under 49 CFR Part 40 or the other DOT Agency & USCG drug and alcohol testing regulations.
• Unless otherwise stipulated by 49 CFR Part 40 or DOT Agency & USCG regulations, use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT Agency & USCG drug and alcohol testing regulations.
• Consequently, an employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example:
— Employers need no written authorizations from employees to conduct DOT tests.
— Collectors need no written authorizations from employees to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.
— Screening Test Technicians and Breath Alcohol Technicians need no written authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers.
— Laboratories need no written authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).
— MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).
— SAPs need no written authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.
— Consortia/Third Party Administrators need no written authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.
— Evaluating physicians need no written authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.
— Employers and service agents need no written authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees.
As an employer, or an employer’s service agent—for example a C/TPA, you must ensure the collector has the following information when conducting a urine specimen collection for you:
(a) Full name of the employee being tested.
(b) Employee SSN or ID number.
(c) Laboratory name and address (can be pre-printed on the CCF).
(d) Employer name, address, phone number, and fax number (can be pre-printed on the CCF at Step 1-A).
(e) DER information required at §40.35 of this part.
(f) MRO name, address, phone number, and fax number (can be pre-printed on the CCF at Step 1-B).
(g) The DOT Agency which regulates the employee’s safety-sensitive duties (the checkmark can pre-printed in the appropriate box on the CCF at Step 1-D).
(h) Test reason, as appropriate: Pre-employment; Random; Reasonable Suspicion/Reasonable Cause; Post-Accident; Return-to-Duty; and Follow-up.
(i) Whether the test is to be observed or not (see §40.67 of this part).
(j) (Optional) C/TPA name, address, phone, and fax number (can be pre-printed on the CCF).
Is a Medical Review Officer (MRO) permitted to accept an employee’s prescription for medication obtained over the Internet?
• An MRO is authorized to accept an employee’s prescription for medication obtained over the Internet only if there is proof that a legitimate doctor-patient relationship had been established.
• The following four elements generally serve as an indication that a legitimate doctor-patient relationship has been established:
— A patient has a medical complaint;
— A medical history has been taken;
— A physical examination has been performed; and
— Some logical connection exists between the complaint, the medical history, the physical examination, and the drug prescribed.
• Standing alone, the completion of an online questionnaire reviewed later by a pharmacy-employed doctor fails to establish a proper doctor-patient relationship.
• The MRO should, at a minimum, consider the following items when verifying the test result:
— The name, physical location, and state(s) of licensure of the prescribing practitioner;
— Whether the employee was professionally evaluated for the current medical complaint by the prescribing practitioner, and the last time the employee was in direct contact with the prescribing practitioner;
— Whether the employee initiated the request to the pharmacy for a particular medication; and
— Whether a proper doctor-patient relationship existed.
• It is the employee’s responsibility to provide sufficient documentation to address MRO inquiries as to whether there was a legitimate doctor-patient relationship.
BAT or Breath Alcohol Technician is a term that refers specifically to a person trained according to the U. S. Department of Transportation alcohol testing program requirements.
A BAT is knowledgeable about 49 CFR Part 40 alcohol testing procedures and has received qualification training in accordance with the DOT Model BAT course.
In addition to information needed for billing purposes, does DOT authorize other information to be included outside the boundaries of the Alcohol Testing Form (ATF)?
How does the Department’s Public Interest Exclusion (PIE) process work when a service agent has been convicted for an offense related to non-compliance with Part 40 or DOT Agency drug and alcohol testing rules?
When there is a judgment or any other determination of guilt of a criminal offense by any court of competent jurisdiction against the service agent, whether entered upon a verdict or plea, including a plea of nolo contendere; or any other resolution that is the functional equivalent of a judgment, including probation before judgment and deferred prosecution, the PIE process works as explained below:
A DOT official can initiate a PIE against the service agent based solely on the conviction.
The conviction means that the standard of proof for issuing the PIE has been met.
Therefore, when the DOT initiating official issues the service agent a Notice of Proposed Exclusion recommending a PIE, the service agent will not be able to contest the facts of the non-compliance or the issuance of the PIE.
The service agent would be afforded only an opportunity to contest the proposed length of time the PIE would be in place.
No. Drug tests other than on urine specimens are not authorized for testing under this part. Only urine specimens screened and confirmed at HHS certified laboratories (see §40.81) are allowed for drug testing under this part. Point-of-collection urine testing or instant tests are not authorized.
(a) This part tells all parties who conduct drug and alcohol tests required by Department of Transportation (DOT) agency regulations how to conduct these tests and what procedures to use.
(b) This part concerns the activities of transportation employers, safety-sensitive transportation employees (including self-employed individuals, contractors and volunteers as covered by DOT agency regulations), and service agents.
(c) Nothing in this part is intended to supersede or conflict with the implementation of the Federal Railroad Administration`s post-accident testing program (see 49 CFR 219.200).
During periods of hot weather, how may Medical Review Officers (MROs) handle laboratory results reported as invalid because of pH greater than or equal to 9.0 but less than or equal to 9.5?
• Part 40 requires an MRO to provide an employee the opportunity to present a medical explanation for an invalid test result, to include any related to pH.
— If the employee provides an acceptable medical explanation, the MRO is authorized to cancel the test and take no further action.
— If there is no acceptable medical explanation, the MRO will cancel the test and will notify the employer or Designated Employer Representative (DER) to direct another collection under direct observation.
• The Department is aware of current research and studies offering evidence that, over time, heat may cause the pH to rise, typically into the range of 9.0 through 9.3, but not higher than 9.5. [See, for example, “Urine pH: the Effects of Time and Temperature after Collection,” Journal of Analytical Toxicology, Vol. 31, October 2007.]
• Consequently, when an employee has no other medical explanation for the pH in the 9.0 – 9.5 range, MROs should consider whether there is evidence of elapsed time and increased temperature that could account for the pH value.
• In doing so, MROs are authorized to consider the following:
— The temperature conditions that were likely to have existed between the time of collection and transportation of the specimen to the laboratory; and
— The length of time between the specimen collection and arrival at the laboratory.
• MROs may talk with the collection sites to discuss time and temperature issues, including any pertinent information regarding specimen storage.
• If the MRO determines that time and temperature account for the pH value, the MRO is authorized to cancel the test and take no further action.
• If the MRO determines that time and temperature fail to account for the pH value, the MRO is authorized cancel the test and direct another collection under direct observation.
In this part, the terms listed in this section have the following meanings:
Adulterated specimen. A specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent for that type of specimen or showing an abnormal concentration of an endogenous substance.
Affiliate. Persons are affiliates of one another if, directly or indirectly, one controls or has the power to control the other, or a third party controls or has the power to control both. Indicators of control include, but are not limited to: interlocking management or ownership; shared interest among family members; shared facilities or equipment; or common use of employees. Following the issuance of a public interest exclusion, an organization having the same or similar management, ownership, or principal employees as the service agent concerning whom a public interest exclusion is in effect is regarded as an affiliate. This definition is used in connection with the public interest exclusion procedures of Subpart R of this part.
Air blank. In evidential breath testing devices (EBTs) using gas chromatography technology, a reading of the device’s internal standard. In all other EBTs, a reading of ambient air containing no alcohol.
Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol.
Alcohol concentration. The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by a breath test under this part.
Alcohol confirmation test. A subsequent test using an EBT, following a screening test with a result of 0.02 or greater, that provides quantitative data about the alcohol concentration.
Alcohol screening device (ASD). A breath or saliva device, other than an EBT, that is approved by the National Highway Traffic Safety Administration (NHTSA) and appears on ODAPC’s Web page for “Approved Screening Devices to Measure Alcohol in Bodily Fluids” because it conforms to the model specifications from NHTSA.
Alcohol screening test. An analytic procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
Alcohol testing site. A place selected by the employer where employees present themselves for the purpose of providing breath or saliva for an alcohol test.
Alcohol use. The drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol.
Aliquot. A fractional part of a specimen used for testing. It is taken as a sample representing the whole specimen.
Breath Alcohol Technician (BAT). A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device.
Cancelled test. A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which this part otherwise requires to be cancelled. A cancelled test is neither a positive nor a negative test.
Chain of custody. The procedure used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed. This procedure uses the Federal Drug Testing Custody and Control Form (CCF) as approved by the Office of Management and Budget.
Collection container. A container into which the employee urinates to provide the specimen for a drug test.
Collection site. A place selected by the employer where employees present themselves for the purpose of providing a urine specimen for a drug test.
Collector. A person who instructs and assists employees at a collection site, who receives and makes an initial inspection of the specimen provided by those employees, and who initiates and completes the CCF.
Confirmatory drug test. A second analytical procedure performed on a different aliquot of the original specimen to identify and quantify the presence of a specific drug or drug metabolite.
Confirmatory validity test. A second test performed on a different aliquot of the original urine specimen to further support a validity test result.
Confirmed drug test. A confirmation test result received by an MRO from a laboratory.
Consortium/Third-party administrator (C/TPA). A service agent that provides or coordinates the provision of a variety of drug and alcohol testing services to employers. C/TPAs typically perform administrative tasks concerning the operation of the employers’ drug and alcohol testing programs. This term includes, but is not limited to, groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members. C/TPAs are not “employers” for purposes of this part.
Continuing education. Training for substance abuse professionals (SAPs) who have completed qualification training and are performing SAP functions, designed to keep SAPs current on changes and developments in the DOT drug and alcohol testing program.
Designated employer representative (DER). An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.
Dilute specimen. A urine specimen with creatinine and specific gravity values that are lower than expected for human urine.
DOT, The Department, DOT Agency. These terms encompass all DOT agencies, including, but not limited to, the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Office of the Secretary (OST). For purposes of this part, the United States Coast Guard (USCG), in the Department of Homeland Security, is considered to be a DOT agency for drug testing purposes only since the USCG regulation does not incorporate Part 40 for its alcohol testing program. These terms include any designee of a DOT agency.
Drugs. The drugs for which tests are required under this part and DOT agency regulations are marijuana, cocaine, amphetamines, phencyclidine (PCP), and opioids.
Employee. Any person who is designated in a DOT agency regulation as subject to drug testing and/or alcohol testing. The term includes individuals currently performing safety-sensitive functions designated in DOT agency regulations and applicants for employment subject to pre-employment testing. For purposes of drug testing under this part, the term employee has the same meaning as the term “donor” as found on CCF and related guidance materials produced by the Department of Health and Human Services.
Employer. A person or entity employing one or more employees (including an individual who is self-employed) subject to DOT agency regulations requiring compliance with this part. The term includes an employer’s officers, representatives, and management personnel. Service agents are not employers for the purposes of this part.
Error Correction Training. Training provided to BATs, collectors, and screening test technicians (STTs) following an error that resulted in the cancellation of a drug or alcohol test. Error correction training must be provided in person or by a means that provides real-time observation and interaction between the instructor and trainee.
Evidential Breath Testing Device (EBT). A device that is approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath at the .02 and .04 alcohol concentrations, and appears on ODAPC’s Web page for “Approved Evidential Breath Measurement Devices” because it conforms with the model specifications available from NHTSA.
HHS. The Department of Health and Human Services or any designee of the Secretary, Department of Health and Human Services.
Initial drug test (also known as a “Screening drug test”). The test used to differentiate a negative specimen from one that requires further testing for drugs or drug metabolites.
Initial specimen validity test. The first test used to determine if a urine specimen is adulterated, diluted, substituted, or invalid.
Invalid drug test. The result reported by an HHS-certified laboratory in accordance with the criteria established by HHS Mandatory Guidelines when a positive, negative, adulterated, or substituted result cannot be established for a specific drug or specimen validity test.
Invalid result. The result reported by a laboratory for a urine specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result.
Laboratory. Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT under this part.
Limit of Detection (LOD). The lowest concentration at which a measurand can be identified, but (for quantitative assays) the concentration cannot be accurately calculated.
Limit of Quantitation. For quantitative assays, the lowest concentration at which the identity and concentration of the measurand can be accurately established.
Medical Review Officer (MRO). A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.
Negative result. The result reported by an HHS-certified laboratory to an MRO when a specimen contains no drug or the concentration of the drug is less than the cutoff concentration for the drug or drug class and the specimen is a valid specimen.
Non-negative specimen. A urine specimen that is reported as adulterated, substituted, positive (for drug(s) or drug metabolite(s)), and/or invalid.
Office of Drug and Alcohol Policy and Compliance (ODAPC). The office in the Office of the Secretary, DOT, that is responsible for coordinating drug and alcohol testing program matters within the Department and providing information concerning the implementation of this part.
Oxidizing adulterant. A substance that acts alone or in combination with other substances to oxidize drugs or drug metabolites to prevent the detection of the drug or drug metabolites, or affects the reagents in either the initial or confirmatory drug test.
Primary specimen. In drug testing, the urine specimen bottle that is opened and tested by a first laboratory to determine whether the employee has a drug or drug metabolite in his or her system; and for the purpose of validity testing. The primary specimen is distinguished from the split specimen, defined in this section.
Positive result. The result reported by an HHS-certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the cutoff concentrations.
Qualification Training. The training required in order for a collector, BAT, MRO, SAP, or STT to be qualified to perform their functions in the DOT drug and alcohol testing program. Qualification training may be provided by any appropriate means (e.g., classroom instruction, internet application, CD-ROM, video).
Reconfirmed. The result reported for a split specimen when the second laboratory is able to corroborate the original result reported for the primary specimen.
Refresher Training. The training required periodically for qualified collectors, BATs, and STTs to review basic requirements and provide instruction concerning changes in technology (e.g., new testing methods that may be authorized) and amendments, interpretations, guidance, and issues concerning this part and DOT agency drug and alcohol testing regulations. Refresher training can be provided by any appropriate means (e.g., classroom instruction, internet application, CD-ROM, video).
Rejected for testing. The result reported by an HHS-certified laboratory when no tests are performed for a specimen because of a fatal flaw or a correctable flaw that is not corrected.
Screening drug test. See Initial drug test definition above.
Screening Test Technician (STT). A person who instructs and assists employees in the alcohol testing process and operates an ASD.
Secretary. The Secretary of Transportation or the Secretary’s designee.
Service agent. Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet DOT qualifications, if applicable. Service agents are not employers for purposes of this part.
Shipping container. A container that is used for transporting and protecting urine specimen bottles and associated documents from the collection site to the laboratory.
Specimen bottle. The bottle that, after being sealed and labeled according to the procedures in this part, is used to hold the urine specimen during transportation to the laboratory.
Split specimen. In drug testing, a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result.
Split specimen collection. A collection in which the urine collected is divided into two separate specimen bottles, the primary specimen (Bottle A) and the split specimen (Bottle B).
Stand-down. The practice of temporarily removing an employee from the performance of safety-sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test result.
Substance Abuse Professional (SAP). A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.
Substituted specimen. A urine specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine.
Verified test. A drug test result or validity testing result from an HHS-certified laboratory that has undergone review and final determination by the MRO.
[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 71 FR 49384, Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 73 FR 35969, June 25, 2008; 75 FR 49861, Aug. 16, 2010; 76 FR 59577, Sept. 27, 2011; 80 FR 19553, Apr. 13, 2015; 81 FR 52365, Aug. 8, 2016; 82 FR 52243, Nov. 13, 2017]
Must a test result be cancelled by the MRO when it is discovered the employee did not have a full three hours to provide a sufficient amount of urine?
• Not affording the employee a full three hours to provide a specimen is not automatically a basis for the MRO to cancel a test.
• The three hour time period is a maximum rather a minimum. But, to avoid potential issues about the fairness of the collection, collectors are advised to provide the full three hours.
• In each of the following examples, the collector could stop the collection process, thoroughly document the details and times on Copy 2 of the CCF, and inform the DER of the employee’s inability to provide a sufficient amount of urine:
— After 2 hours and 50 minutes, the employee informs the collector there is no reason to try again because he or she will not be able to provide a specimen. The collector terminates the collection.
— After 2 hours and 50 minutes, the employee requests to try again but provides another insufficient amount of urine. The collector terminates the collection because there is no practical possibility that the employee will provide the requisite amount in the next 10 minutes.
• In each of these two examples, the employee has had a fair opportunity to provide 45 mL of urine, and the test should not be cancelled because the full three-hour period was not used.
• The medical evaluation should be conducted to determine if there is a legitimate physiological condition or psychological disorder explanation for the employee’s inability to provide the requisite amount of urine.
• In situations where it appears the employee was not provided a fair opportunity to provide the requisite amount of urine, the MRO could cancel the test.
— For example, the collector terminates a collection after two hours because the collection site is closing and all collectors are leaving.
• Please note that it remains a refusal to test if the employee leaves the collection site without permission.
ODAPC and the DOT Office of General Counsel (OGC) provide written interpretations of the provisions of this part. These written DOT interpretations are the only official and authoritative interpretations concerning the provisions of this part. DOT agencies may incorporate ODAPC/OGC interpretations in written guidance they issue concerning drug and alcohol testing matters. Only Part 40 interpretations issued after August 1, 2001, are considered valid.
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?
- The Department views this situation as 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 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 give to the employee of this collection requirement
until immediately before the collection.
* Finally, the MRO must notify ODAPC of the failure to reconfirm.
- The result of the collection under direct observation will be the result of record for this testing event.
Mail, fax, or email to:
U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, W62-300, 1200 New Jersey Avenue SE., Washington, DC 20590, Fax: (202) 366-3897, Email: ODAPCWebMail@dot.gov.
The following items are required on each report:
Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
- DOT Specimen Results Reported (total number)
- Negative Results Reported (total number) Negative (number)
- Rejected for Testing Results Reported (total number) By Reason
(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)
- Positive Results Reported (total number) By Drug
(a) Marijuana Metabolite (number)
(b) Cocaine Metabolite (number)
(c) Opioids (number)
(1) Codeine (number)
(2) Morphine (number)
(3) 6-AM (number)
(4) Hydrocodone (number)
(5) Hydromorphone (number)
(6) Oxycodone (number)
(7) Oxymorphone (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
(1) Amphetamine (number)
(2) Methamphetamine (number)
(3) MDMA (number)
(4) MDA (number)
- Adulterated Results Reported (total number) By Reason (number)
- Substituted Results Reported (total number)
- Invalid Results Reported (total number) By Reason (number)
(a) If you want an exemption from any provision of this part, you must request it in writing from the Office of the Secretary of Transportation, under the provisions and standards of 49 CFR part 5. You must send requests for an exemption to the following address: Department of Transportation, Deputy Assistant General Counsel for Regulation and Enforcement, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(b) Under the standards of 49 CFR part 5, we will grant the request only if the request documents special or exceptional circumstances, not likely to be generally applicable and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impracticable.
(c) If we grant you an exemption, you must agree to take steps we specify to comply with the intent of the provision from which an exemption is granted.
(d) We will issue written responses to all exemption requests.
If an employee fails to provide a sufficient amount of urine during an observed collection, can an employer remove the employee from performing safety-sensitive functions pending receipt of the verified result from the Medical Review Officer (MRO)?
• The Department believes an employee’s failing to provide a sufficient amount of urine during a directly observed collection is very similar to a laboratory’s reporting a positive, adulterated, or substituted test result to MRO.
• While we do not believe it is appropriate for an employer to remove the employee from safety-sensitive duties until receiving the MRO’s verified result, we think stand-down waiver provisions could be relevant.
• Therefore, employers can apply for a stand-down waiver that would permit the employee to be removed from safety-sensitive duties when he or she does not provide an adequate amount of urine during an observed collection.
• The waiver request would need to meet all criteria outlined at 40.21 and should reference the fact that it is for standing an employee down who fails to provide an adequate amount of urine during an observed collection.
• The 40.21 waiver request for laboratory positive, adulterated, and substituted results will continue to be evaluated separately.
When I replace the batteries in my Alco-Sensor V and XLinstrument there is a prolonged, constant beep. Is there something wrong?
The Alco-Sensor VXL instrument has the capacity to store a large number of tests in its memory. If a fresh set of batteries are installed in the instrument after the instrument has had no power for a short period of time, the Alco-Sensor VXL will re-initialize the memory database as a self-diagnostic process. During this process the instrument emits a constant beep to indicate that it is performing this task.
The length of time to complete the process, and for the constant beep to stop, is dependent on the overall amount of data stored in the instrument. In software versions with a large amount of data stored this could take up to 5 minutes.
Should the noise persist for more than 5 minutes, please contact Intoximeters Technical Services Department, or your local distributor, for additional support.
(a) As an employer, you are responsible for meeting all applicable requirements and procedures of this part.
(b) You are responsible for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations.
(c) All agreements and arrangements, written or unwritten, between and among employers and service agents concerning the implementation of DOT drug and alcohol testing requirements are deemed, as a matter of law, to require compliance with all applicable provisions of this part and DOT agency drug and alcohol testing regulations. Compliance with these provisions is a material term of all such agreements and arrangements.
What are some examples of an employee’s failure to cooperate with the testing process that would cause a refusal to test and how should the collector handle them?
• Part 40 highlights two examples of failure to cooperate – the employee refuses to empty pockets when instructed to do so; and the employee behaves in a confrontational way that disrupts the testing process.
• Among others are:
— The employee fails to wash his or her hands after being directed to do so by the collector.
— The employee admits to the collector that he or she adulterated or substituted the specimen; and
— The employee is found to have a device – such as a prosthetic appliance – the purpose of which is to interfere with providing an actual urine specimen.
• When the issue is a problem with refusing to following instructions – for example, refusing to empty pockets or refusing to wash hands – or if there is a confrontation, the collector should warn the employee of potential consequences of a failure to cooperate; and if practical, seek assistance from the DER or supervisor to ensure that the employee understands the ramifications.
• When the issue is admission of adulteration or substitution or when a device is found, there is no need for the collector to warn the employee or to seek assistance from the DER or supervisor.
• In every case, the collector must carefully follow the procedures at 40.191(d) by terminating the collection process, immediately notifying the DER of the refusal, and thoroughly documenting the circumstances surrounding the event in the remarks section of the CCF.
• Any specimen that had been collected before the refusal should be discarded.
When the subject provided a sample to my Alco-Sensor VXL instrument the test result was “Insufficient Sample”. Is there something wrong with the instrument?
The Alco-Sensor VXL instrument is an advanced, evidential quality breath alcohol instrument that features advanced sampling analytics to make sure that the sample provided by the subject meets the minimum sample requirements for your program. When the submitted sample does not meet these minimum sample requirements the instrument will display, print, and store “Insufficient Sample” as the test result.
- Breath sample flow below or above threshold values;
- Attempt to “suck back” while providing a sample;
- Providing a sample that is less in volume than the minimum volume required;
- Not completing a sample or not supplying a sample within the allowed time for a sample to be provided;
- Abruptly stopping the breath sample.
(a) DOT tests must be completely separate from non-DOT tests in all respects.
(b) DOT tests must take priority and must be conducted and completed before a non-DOT test is begun. For example, you must discard any excess urine left over from a DOT test and collect a separate void for the subsequent non-DOT test.
(c) Except as provided in paragraph (d) of this section, you must not perform any tests on DOT urine or breath specimens other than those specifically authorized by this part or DOT agency regulations. For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing.
(d) The single exception to paragraph (c) of this section is when a DOT drug test collection is conducted as part of a physical examination required by DOT agency regulations. It is permissible to conduct required medical tests related to this physical examination (e.g., for glucose) on any urine remaining in the collection container after the drug test urine specimens have been sealed into the specimen bottles.
(e) No one is permitted to change or disregard the results of DOT tests based on the results of non-DOT tests. For example, as an employer you must not disregard a verified positive DOT drug test result because the employee presents a negative test result from a blood or urine specimen collected by the employee’s physician or a DNA test result purporting to question the identity of the DOT specimen.
(f) As an employer, you must not use the CCF or the ATF in your non-DOT drug and alcohol testing programs. This prohibition includes the use of the DOT forms with references to DOT programs and agencies crossed out. You also must always use the CCF and ATF for all your DOT-mandated drug and alcohol tests.
Are there any circumstances for which an employee should be given more than 3 hours and 40 ounces of fluids to provide a sufficient amount of urine during a collection?
• No. The Department sees no situations for which an employee should be given more than 3 hours and offered more than 40 ounces of fluids to provide a sufficient amount of urine after the “first unsuccessful attempt” to do so [see §40.193(b)(4)].
• The Department regards the “first unsuccessful attempt” to be very first time the employee comes out of the urination area with less than 45 mL of urine.
• This is true about the “first unsuccessful attempt” even if a subsequent attempt during the three-hour period requires an immediate collection under direct observation because the specimen is outside the appropriate temperature range or shows signs of tampering [see §40.65(b)&(c)].
• For example: An employee presents an insufficient amount of urine at noon and is urged by the collector to drink up to 40 ounces of fluid distributed through a period of up to 3 hours (3 o’clock, in this example).
— At 2 o’clock, the employee indicates that he or she can now provide the specimen, enters the collection area, but returns with a specimen outside the acceptable temperature range.
— The collector immediately conducts an observed collection, but the employee – for the second time during this collection event, which began at noon – provides less than 45 mL of urine.
— The employee has up to 3 o’clock and any remaining fluids to provide an adequate amount of urine under direct observation: The employee is not given an additional three hours and is not offered an additional 40 ounces of fluids.
— If the employee ultimately fails to provide a sufficient amount of urine during the remaining time, the collector discontinues the collection, discards any specimen the employee previously provided, appropriately documents the CCF, and immediately notifies the DER and the MRO – following the requirements at §40.193(b)(4) and (b)(5).
(a) As an employer, you may use a service agent to perform the tasks needed to comply with this part and DOT agency drug and alcohol testing regulations, consistent with the requirements of Subpart Q and other applicable provisions of this part.
(b) As an employer, you are responsible for ensuring that the service agents you use meet the qualifications set forth in this part (e.g., §40.121 for MROs). You may require service agents to show you documentation that they meet the requirements of this part (e.g., documentation of MRO qualifications required by §40.121(e)).
(c) You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions. Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent’s conduct.
(d) As an employer, you must not permit a service agent to act as your DER.
Yes, as an employer, you are responsible for obtaining information required by this part from your service agents. This is true whether or not you choose to use a C/TPA as an intermediary in transmitting information to you. For example, suppose an applicant for a safety-sensitive job takes a pre-employment drug test, but there is a significant delay in your receipt of the test result from an MRO or C/TPA. You must not assume that “no news is good news” and permit the applicant to perform safety-sensitive duties before receiving the result. This is a violation of the Department’s regulations.
This can occur quite rapidly, but there are factors such as if there is food in the stomach, or certain medical conditions that can affect the absorption rate.
- A collector may give an employee permission to leave the collection site only after the testing process is complete.
- For tests conducted under §40.73, the testing process is complete when both the employee and the collector complete the chain of custody form in the order specified in §40.73(a)(1)-(6). At that time, the collector must advise the employee that he or she may leave the collection site.
- For tests conducted under §40.193, the testing process is complete only after the employee has provided a sufficient specimen and the steps in §40.73(a)(1)-(6) are complete, or the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide a specimen.
- There is no requirement for a collector to inform an employee that the failure to remain at the collection site is a refusal. Therefore, if the collector does not inform an employee that failure to remain at the collection site is a refusal, it does not mean that the collector has given the employee permission to leave the collection site. If an employee leaves prior to the completion of the testing process, the employer must decide whether the employee’s actions constitute a refusal.
§ 40.21 May an employer stand down an employee before the MRO has completed the verification process?
(a) As an employer, you are prohibited from standing employees down, except consistent with a waiver a DOT agency grants under this section.
(b) You may make a request to the concerned DOT agency for a waiver from the prohibition of paragraph (a) of this section. Such a waiver, if granted, permits you to stand an employee down following the MRO’s receipt of a laboratory report of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test pertaining to the employee.
(1) For this purpose, the concerned DOT agency is the one whose drug and alcohol testing rules apply to the majority of the covered employees in your organization. The concerned DOT agency uses its applicable procedures for considering requests for waivers.
(2) Before taking action on a waiver request, the concerned DOT agency coordinates with other DOT agencies that regulate the employer’s other covered employees.
(3) The concerned DOT agency provides a written response to each employer that petitions for a waiver, setting forth the reasons for the agency’s decision on the waiver request.
(c) Your request for a waiver must include, as a minimum, the following elements:
(1) Information about your organization:
(i) Your determination that standing employees down is necessary for safety in your organization and a statement of your basis for it, including any data on safety problems or incidents that could have been prevented if a stand-down procedure had been in place;
(ii) Data showing the number of confirmed laboratory positive, adulterated, and substituted test results for your employees over the two calendar years preceding your waiver request, and the number and percentage of those test results that were verified positive, adulterated, or substituted by the MRO;
(iii) Information about the work situation of the employees subject to stand-down, including a description of the size and organization of the unit(s) in which the employees work, the process through which employees will be informed of the stand-down, whether there is an in-house MRO, and whether your organization has a medical disqualification or stand-down policy for employees in situations other than drug and alcohol testing; and
(iv) A statement of which DOT agencies regulate your employees.
(2) Your proposed written company policy concerning stand-down, which must include the following elements:
(i) Your assurance that you will distribute copies of your written policy to all employees that it covers;
(ii) Your means of ensuring that no information about the confirmed positive, adulterated, or substituted test result or the reason for the employee’s temporary removal from performance of safety-sensitive functions becomes available, directly or indirectly, to anyone in your organization (or subsequently to another employer) other than the employee, the MRO and the DER;
(iii) Your means of ensuring that all covered employees in a particular job category in your organization are treated the same way with respect to stand-down;
(iv) Your means of ensuring that a covered employee will be subject to stand-down only with respect to the actual performance of safety-sensitive duties;
(v) Your means of ensuring that you will not take any action adversely affecting the employee’s pay and benefits pending the completion of the MRO’s verification process. This includes continuing to pay the employee during the period of the stand-down in the same way you would have paid him or her had he or she not been stood down;
(vi) Your means of ensuring that the verification process will commence no later than the time an employee is temporarily removed from the performance of safety-sensitive functions and that the period of stand-down for any employee will not exceed five days, unless you are informed in writing by the MRO that a longer period is needed to complete the verification process; and
(vii) Your means of ensuring that, in the event that the MRO verifies the test negative or cancels it—
(A) You return the employee immediately to the performance of safety-sensitive duties;
(B) The employee suffers no adverse personnel or financial consequences as a result; and
(C) You maintain no individually identifiable record that the employee had a confirmed laboratory positive, adulterated, or substituted test result (i.e., you maintain a record of the test only as a negative or cancelled test).
(d) The Administrator of the concerned DOT agency, or his or her designee, may grant a waiver request only if he or she determines that, in the context of your organization, there is a high probability that the procedures you propose will effectively enhance safety and protect the interests of employees in fairness and confidentiality.
(1) The Administrator, or his or her designee, may impose any conditions he or she deems appropriate on the grant of a waiver.
(2) The Administrator, or his or her designee, may immediately suspend or revoke the waiver if he or she determines that you have failed to protect effectively the interests of employees in fairness and confidentiality, that you have failed to comply with the requirements of this section, or that you have failed to comply with any other conditions the DOT agency has attached to the waiver.
(e) You must not stand employees down in the absence of a waiver, or inconsistent with the terms of your waiver. If you do, you are in violation of this part and DOT agency drug testing regulations, and you are subject to enforcement action by the DOT agency just as you are for other violations of this part and DOT agency rules.
Do you have forms that I can fill out online to request information about your company or your products?
Yes, there are several online forms available to inquire on information regarding Intoximeters various products and services. While some forms are available for online use only, others may be downloaded to your computer for later use. Just follow the Forms and Catalogs link below for a full summary of all of our available forms.
If you are interested in learning more about Intoximeters range of breath alcohol instruments, our easy to use Product Information Request link will allow you to quickly and easily request the information you are seeking.
Should you have questions or need additional information on Intoximeters products, supplies, training, or service, please contact your local representative by using the Contact Us section of our website or contacting our Customer Service Department at [+1] (314) 429-4000.
What happens if an employee leaves the collection site prior to the completion of the testing process?
- As noted in § 40.191(a)(2), failure to remain at the collection site until the testing process is complete generally constitutes a refusal to test.
- If an employee leaves the collection facility prior to the testing process being completed, the collector must inform the employer as required under § 40.191(d). The employer, as required under § 40.355(i), must then determine whether the employee’s actions constitute a refusal to test. To make this determination, the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the employee (i.e., in the event of a medical emergency, copies of hospital admission records/EMS records/police records, etc).
- The employer must document its decision, and the solid reasoning for the decision, in all collection site refusal determinations. Copies of these decisions, and the information relied on in making those decisions, must be maintained in accordance with § 40.333 and the applicable modal recordkeeping requirements. If during the course of an inspection, the DOT determines that you have not properly documented these determinations, you may be subject to penalty in accordance with these regulations.
(a) As an employer who receives a verified positive drug test result, you must immediately remove the employee involved from performing safety-sensitive functions. You must take this action upon receiving the initial report of the verified positive test result. Do not wait to receive the written report or the result of a split specimen test.
(b) As an employer who receives a verified adulterated or substituted drug test result, you must consider this a refusal to test and immediately remove the employee involved from performing safety-sensitive functions. You must take this action on receiving the initial report of the verified adulterated or substituted test result. Do not wait to receive the written report or the result of a split specimen test.
(c) As an employer who receives an alcohol test result of 0.04 or higher, you must immediately remove the employee involved from performing safety-sensitive functions. If you receive an alcohol test result of 0.02-0.039, you must temporarily remove the employee involved from performing safety-sensitive functions, as provided in applicable DOT agency regulations. Do not wait to receive the written report of the result of the test.
(d) As an employer, when an employee has a verified positive, adulterated, or substituted test result, or has otherwise violated a DOT agency drug and alcohol regulation, you must not return the employee to the performance of safety-sensitive functions until or unless the employee successfully completes the return-to-duty process of Subpart O of this part.
(e) As an employer who receives a drug test result indicating that the employee’s specimen was dilute, take action as provided in §40.197.
(f) As an employer who receives a drug test result indicating that the employee’s urine specimen test was cancelled because it was invalid and that a second collection must take place under direct observation—
(1) You must immediately direct the employee to provide a new specimen under direct observation.
(2) You must not attach consequences to the finding that the test was invalid other than collecting a new specimen under direct observation.
(3) You must not give any advance notice of this test requirement to the employee.
(4) You must instruct the collector to note on the CCF the same reason (e.g., random test, post-accident test) and DOT Agency (e.g., check DOT and FMCSA) as for the original collection.
(5) You must ensure that the collector conducts the collection under direct observation.
(g) As an employer who receives a cancelled test result when a negative result is required (e.g., pre-employment, return-to-duty, or follow-up test), you must direct the employee to provide another specimen immediately.
(h) As an employer, you may also be required to take additional actions required by DOT agency regulations (e.g., FAA rules require some positive drug tests to be reported to the Federal Air Surgeon).
(i) As an employer, you must not alter a drug or alcohol test result transmitted to you by an MRO, BAT, or C/TPA.
Is the United States Coast Guard (USCG) a DOT Agency with respect to the DOT’s drug and alcohol testing regulation, 49 CFR Part 40?
- Although included in the definition of a DOT Agency [see 40.3], the USCG is a DOT Agency with respect to Part 40 only when the USCG regulation [e.g., 46 CFR Part 16 or 46 CFR Part 4] incorporates Part 40 to carry out its chemical testing regulation. For example:
- With respect to drug testing, the USCG regulation at 49 CFR 16.113(a) states, “Drug testing programs required by this part must be conducted in accordance with 49 CFR Part 40, Procedures for Transportation Workplace Testing Programs.”
- With respect to alcohol testing and submitting alcohol testing annual data to the USCG, the USCG regulation at 46 CFR 16.500(a)(2) states, “The provisions in 49 CFR Part 40 for alcohol testing do not apply to the Coast Guard or to marine employers, and alcohol testing data is not required or permitted to be submitted by this section.”
- Because the USCG regulation, 46 CFR Part 16, incorporates Part 40 for drug testing, the USCG is a DOT agency for the drug testing component of Part 40, including subparts J–N.
§ 40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?
(a) Yes, as an employer, you must, after obtaining an employee’s written consent, request the information about the employee listed in paragraph (b) 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 transfers 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.
(b) You must request the information listed in this paragraph (b) from DOT-regulated employers who have employed the employee during any period during the two years before the date of the employee’s application or transfer:
(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(2) Verified positive drug tests;
(3) Refusals to be tested (including verified adulterated or substituted drug test results);
(4) Other violations of DOT agency drug and alcohol testing regulations; and
(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee’s successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-do-duty process (e.g., an employer who did not hire an employee who tested positive on a pre-employment test), you must seek to obtain this information from the employee.
(c) The information obtained from a previous employer includes any drug or alcohol test information obtained from previous employers under this section or other applicable DOT agency regulations.
(d) If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, you must obtain and review the information as soon as possible. However, you must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions, unless you have obtained or made and documented a good faith effort to obtain this information.
(e) If you obtain information that the employee has violated a DOT agency drug and alcohol regulation, you must not use the employee to perform safety-sensitive functions unless you also obtain information that the employee has subsequently complied with the return-to-duty requirements of Subpart O of this part and DOT agency drug and alcohol regulations.
(f) You must provide to each of the employers from whom you request information under paragraph (b) of this section written consent for the release of the information cited in paragraph (a) of this section.
(g) The release of information under this section must be in any written form (e.g., fax, e-mail, letter) that ensures confidentiality. As the previous employer, you must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided.
(h) If you are an employer from whom information is requested under paragraph (b) of this section, you must, after reviewing the employee’s specific, written consent, immediately release the requested information to the employer making the inquiry.
(i) As the employer requesting the information required under this section, you must maintain a written, confidential record of the information you obtain or of the good faith efforts you made to obtain the information. You must retain this information for three years from the date of the employee’s first performance of safety-sensitive duties for you.
(j) As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section).
Electrochemical Sensors, also known as fuel cells, have many advantages that make them attractive for use as the primary sensor in evidential breath testing devices. The fuel cell’s inherent specificity for alcohol makes it a superior means of measuring alcohol in a breath sample. No substance remaining in a subject’s breath after a short deprivation period will create a reaction in the cell – except alcohol. Fuel cells have become recognized in the scientific and forensic community as accurate and reliable.
During the verification interview, the MRO may learn about a legally prescribed medication that would likely make the employee medically unqualified or would likely post a significant safety risk. Section 40.135(e) requires the MRO to tell the employee to have his/her prescribing physician contact the MRO to discuss the MRO’s concern about the medication. If the prescribing physician does not speak with the MRO within 5 business days of the MRO informing the employee to have his/her prescribing physician contact the MRO, the MRO will report the information about the legally prescribed medication to the appropriate third party. Can the MRO report that information to a third party before 5 business days have elapsed?
§ § 40.135; 40.327
Yes, there could be instances where the MRO would not have to wait the 5 business days to report the information, for example:
The prescribing physician speaks with the MRO before 5 business days have elapsed and the significant safety risk remains unresolved.
The employee expressly declines to have his/her prescribing physician speak with the MRO.
If, during the verification interview, the MRO learns of a medical condition or diagnosis that is likely to result in the employee’s being medically unqualified under a DOT agency regulation (e.g, FAA, FMCSA, USCG), the MRO must report that information under the procedures in § 40.327. The 5-day pause provision in § 40.135(e) is inapplicable.
§ 40.27 May an employer require an employee to sign a consent or release in connection with the DOT drug and alcohol testing program?
No, as an employer, you must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO and SAP services).
Many hand sanitizers have alcohol as a primary ingredient. Some are as much as 60% alcohol. The alcohol from the sanitizer will rapidly evaporate after application. To avoid the possibility that alcohol from the use of this product could affect a subject test result, it is best to abstain from testing until after the alcohol has evaporated. We would suggest that waiting 5 to 10 minutes after the sanitizer has dried on the Operator`s hand will eliminate the possibility that residual alcohol from the sanitizer could affect a test result.
You can find other information on the responsibilities of employers in the following sections of this part:
§40.35—Information about DERs that employers must provide collectors.
§40.45—Modifying CCFs, Use of foreign-language CCFs.
§40.47—Use of non-Federal forms for DOT tests or Federal CCFs for non-DOT tests.
§40.67—Requirements for direct observation.
§40.173—Responsibility to ensure test of split specimen.
§40.193—Action in “shy bladder” situations.
§40.197—Actions following report of a dilute specimen.
§40.207—Actions following a report of a cancelled drug test.
§40.209—Actions following and consequences of non-fatal flaws in drug tests.
§40.215—Information about DERs that employers must provide BATs and STTs.
§40.225—Modifying ATFs; use of foreign-language ATFs.
§40.227—Use of non-DOT forms for DOT tests or DOT ATFs for non-DOT tests.
§40.235 (c) and (d)—responsibility to follow instructions for ASDs.
§40.255 (b)—receipt and storage of alcohol test information.
§40.265 (c)-(e)—actions in “shy lung” situations.
§40.267—Cancellation of alcohol tests.
§40.271—Actions in “correctable flaw” situations in alcohol tests.
§40.273—Actions following cancelled tests in alcohol tests.
§40.275—Actions in “non-fatal flaw” situations in alcohol tests.
§§40.287-40.289—Responsibilities concerning SAP services.
§§40.295-40.297—Prohibition on seeking second SAP evaluation or changing SAP recommendation.
§40.303—Responsibilities concerning aftercare recommendations.
§40.305—Responsibilities concerning return-to-duty decision.
§40.309—Responsibilities concerning follow-up tests.
§40.321—General confidentiality requirement.
§40.323—Release of confidential information in litigation.
§40.331—Other circumstances for the release of confidential information.
§40.333—Record retention requirements.
§40.345—Choice of who reports drug testing information to employers.
To date CLIA has taken the position that breath alcohol testing is not a diagnostic test and therefore is not covered by CLIA. See a position statement from CLIA at the link above.
The following informational links are regarding COVID-19, published by the DOT:
(a) Collectors meeting the requirements of this subpart are the only persons authorized to collect urine specimens for DOT drug testing.
(b) A collector must meet training requirements of §40.33.
(c) As the immediate supervisor of an employee being tested, you may not act as the collector when that employee is tested, unless no other collector is available and you are permitted to do so under DOT agency drug and alcohol regulations.
(d) You must not act as the collector for the employee being tested if you work for a HHS-certified laboratory (e.g., as a technician or accessioner) and could link the employee with a urine specimen, drug testing result, or laboratory report.