§40.149; §40.209

• • 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).