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190 rows where part_number = 40 and title_number = 49 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 49:49:1.0.1.1.30.1.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | A | Subpart A—Administrative Provisions | § 40.1 Who does this regulation cover? | DOT | (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). | |||||
| 49:49:1.0.1.1.30.1.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | A | Subpart A—Administrative Provisions | § 40.3 What do the terms used in this part mean? | DOT | [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; 88 FR 27636, May 2, 2023] | 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… | ||||
| 49:49:1.0.1.1.30.1.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | A | Subpart A—Administrative Provisions | § 40.5 Who issues authoritative interpretations of this regulation? | DOT | 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. | |||||
| 49:49:1.0.1.1.30.1.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | A | Subpart A—Administrative Provisions | § 40.7 How can you get an exemption from a requirement in this regulation? | DOT | (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. | |||||
| 49:49:1.0.1.1.30.10.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | J | Subpart J—Alcohol Testing Personnel | § 40.211 Who conducts DOT alcohol tests? | DOT | (a) Screening test technicians (STTs) and breath alcohol technicians (BATs) meeting their respective requirements of this subpart are the only people authorized to conduct DOT alcohol tests. (b) An STT can conduct only alcohol screening tests, but a BAT can conduct alcohol screening and confirmation tests. (c) As a BAT- or STT-qualified immediate supervisor of a particular employee, you may not act as the STT or BAT when that employee is tested, unless no other STT or BAT is available and DOT agency regulations do not prohibit you from doing so. | |||||
| 49:49:1.0.1.1.30.10.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | J | Subpart J—Alcohol Testing Personnel | § 40.213 What training requirements must STTs and BATs meet? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 FR 5244, Feb. 2, 2010; 82 FR 52246, Nov. 13, 2017] | To be permitted to act as a BAT or STT in the DOT alcohol testing program, you must meet each of the requirements of this section: (a) You must be knowledgeable about the alcohol testing procedures in this part and the current DOT guidance. Procedures and guidance are available from ODAPC (Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, 202-366-3784, or on the ODAPC Web site, http://www.transportation.gov/odapc ). You must keep current on any changes to these materials. You must subscribe to the ODAPC list-serve at ( https://www.transportation.gov/odapc/get-odapc-email-updates ). (b) Qualification training. You must receive qualification training meeting the requirements of this paragraph (b). (1) Qualification training must be in accordance with the DOT Model BAT or STT Course, as applicable. The DOT Model Courses are available from ODAPC (Department of Transportation, 1200 New Jersey Avenue, SE., Washington DC, 20590, 202-366-3784, or on the ODAPC web site, http://www.dot.gov/ost/dapc ). The training can also be provided using a course of instruction equivalent to the DOT Model Courses. On request, ODAPC will review BAT and STT instruction courses for equivalency. (2) Qualification training must include training to proficiency in using the alcohol testing procedures of this part and in the operation of the particular alcohol testing device(s) ( i.e., the ASD(s) or EBT(s)) you will be using. (3) The training must emphasize that you are responsible for maintaining the integrity of the testing process, ensuring the privacy of employees being tested, and avoiding conduct or statements that could be viewed as offensive or inappropriate. (4) The instructor must be an individual who has demonstrated necessary knowledge, skills, and abilities by regularly conducting DOT alcohol tests as an STT or BAT, as applicable, for a period of at least a year, who has conducted STT or BAT training, as applicable, under this part for a year, or who has successfully completed a “train the t… | ||||
| 49:49:1.0.1.1.30.10.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | J | Subpart J—Alcohol Testing Personnel | § 40.215 What information about the DER do employers have to provide to BATs and STTs? | DOT | As an employer, you must provide to the STTs and BATs the name and telephone number of the appropriate DER (and C/TPA, where applicable) to contact about any problems or issues that may arise during the testing process. | |||||
| 49:49:1.0.1.1.30.11.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.221 Where does an alcohol test take place? | DOT | (a) A DOT alcohol test must take place at an alcohol testing site meeting the requirements of this section. (b) If you are operating an alcohol testing site, you must ensure that it meets the security requirements of § 40.223. (c) If you are operating an alcohol testing site, you must ensure that it provides visual and aural privacy to the employee being tested, sufficient to prevent unauthorized persons from seeing or hearing test results. (d) If you are operating an alcohol testing site, you must ensure that it has all needed personnel, materials, equipment, and facilities to provide for the collection and analysis of breath and/or saliva samples, and a suitable clean surface for writing. (e) If an alcohol testing site fully meeting all the visual and aural privacy requirements of paragraph (c) is not readily available, this part allows a reasonable suspicion or post-accident test to be conducted at a site that partially meets these requirements. In this case, the site must afford visual and aural privacy to the employee to the greatest extent practicable. (f) An alcohol testing site can be in a medical facility, a mobile facility ( e.g., a van), a dedicated collection facility, or any other location meeting the requirements of this section. | |||||
| 49:49:1.0.1.1.30.11.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.223 What steps must be taken to protect the security of alcohol testing sites? | DOT | (a) If you are a BAT, STT, or other person operating an alcohol testing site, you must prevent unauthorized personnel from entering the testing site. (1) The only people you are to treat as authorized persons are employees being tested, BATs, STTs, and other alcohol testing site workers, DERs, employee representatives authorized by the employer ( e.g., on the basis of employer policy or labor-management agreement), and DOT agency representatives. (2) You must ensure that all persons are under the supervision of a BAT or STT at all times when permitted into the site. (3) You may remove any person who obstructs, interferes with, or causes unnecessary delay in the testing process. (b) As the BAT or STT, you must not allow any person other than you, the employee, or a DOT agency representative to actually witness the testing process (see §§ 40.241-40.255). (c) If you are operating an alcohol testing site, you must ensure that when an EBT or ASD is not being used for testing, you store it in a secure place. (d) If you are operating an alcohol testing site, you must ensure that no one other than BATs or other employees of the site have access to the site when an EBT is unsecured. (e) As a BAT or STT, to avoid distraction that could compromise security, you are limited to conducting an alcohol test for only one employee at a time. (1) When an EBT screening test on an employee indicates an alcohol concentration of 0.02 or higher, and the same EBT will be used for the confirmation test, you are not allowed to use the EBT for a test on another employee before completing the confirmation test on the first employee. (2) As a BAT who will conduct both the screening and the confirmation test, you are to complete the entire screening and confirmation process on one employee before starting the screening process on another employee. (3) You are not allowed to leave the alcohol testing site while the testing process for a given employee is in progress, except to notify a supervisor or contact a DER for assistance in th… | |||||
| 49:49:1.0.1.1.30.11.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.225 What form is used for an alcohol test? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 FR 8529, Feb. 25, 2010; 75 FR 13009, Mar. 18, 2010; 82 FR 52246, Nov. 13, 2017; 88 FR 27649, May 2, 2023] | (a) The DOT Alcohol Testing Form (ATF) must be used for every DOT alcohol test. The ATF must be a three-part carbonless manifold form. The ATF is found in appendix I to this part. You may view this form on the ODAPC web site ( http://www.transportation.gov/odapc ). (b) As an employer in the DOT alcohol testing program, you are not permitted to modify or revise the ATF except as follows: (1) You may include other information needed for billing purposes, outside the boundaries of the form. (2) You may use a ATF directly generated by an EBT which omits the space for affixing a separate printed result to the ATF, provided the EBT prints the result directly on the ATF. (3) You may use an ATF that has the employer's name, address, and telephone number preprinted. In addition, a C/TPA's name, address, and telephone number may be included, to assist with negative results. (4) You may use an ATF in which all pages are printed on white paper. You may modify the ATF by using colored paper, or have clearly discernable borders or designation statements on Copy 2 and Copy 3. When colors are used, they must be green for Copy 2 and blue for Copy 3. (5) As a BAT or STT, you may add, on the “Remarks” line of the ATF, the name of the DOT agency under whose authority the test occurred. (6) As a BAT or STT, you may use a ATF that has your name, address, and telephone number preprinted, but under no circumstances can your signature be preprinted. (c) As an employer, you may use an equivalent foreign-language version of the ATF approved by ODAPC. You may use such a non-English language form only in a situation where both the employee and BAT/STT understand and can use the form in that language. | ||||
| 49:49:1.0.1.1.30.11.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.227 May employers use the ATF for non-DOT tests, or non-DOT forms for DOT tests? | DOT | (a) No, as an employer, BAT, or STT, you are prohibited from using the ATF for non-DOT alcohol tests. You are also prohibited from using non-DOT forms for DOT alcohol tests. Doing either subjects you to enforcement action under DOT agency regulations. (b) If the STT or BAT, either by mistake, or as the only means to conduct a test under difficult circumstances ( e.g., post-accident test with insufficient time to obtain the ATF), uses a non-DOT form for a DOT test, the use of a non-DOT form does not, in and of itself, require the employer or service agent to cancel the test. However, in order for the test to be considered valid, a signed statement must be obtained from the STT or BAT in accordance with § 40.271(b) . | |||||
| 49:49:1.0.1.1.30.11.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.229 What devices are used to conduct alcohol screening tests? | DOT | [82 FR 52246, Nov. 13, 2017] | ASDs listed on ODAPC's Web page for “Approved Screening Devices to Measure Alcohol in Bodily Fluids” and EBTs listed on ODAPC's Web page for “Approved Evidential Breath Measurement Devices” are the only devices you are allowed to use to conduct alcohol screening tests under this part. You may use an ASD for DOT alcohol tests only if there are instructions for its use in this part. An ASD can be used only for screening tests for alcohol, and must not be used for confirmation tests. | ||||
| 49:49:1.0.1.1.30.11.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.231 What devices are used to conduct alcohol confirmation tests? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017] | (a) EBTs on ODAPC's Web page for “Approved Evidential Breath Measurement Devices” that meet the requirements of paragraph (b) of this section are the only devices you may use to conduct alcohol confirmation tests under this part. (b) To conduct a confirmation test, you must use an EBT that has the following capabilities: (1) Provides a printed triplicate result (or three consecutive identical copies of a result) of each breath test; (2) Assigns a unique number to each completed test, which the BAT and employee can read before each test and which is printed on each copy of the result; (3) Prints, on each copy of the result, the manufacturer's name for the device, its serial number, and the time of the test; (4) Distinguishes alcohol from acetone at the 0.02 alcohol concentration level; (5) Tests an air blank; and (6) Performs an external calibration check. | ||||
| 49:49:1.0.1.1.30.11.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.233 What are the requirements for proper use and care of EBTs? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017] | (a) As an EBT manufacturer, you must submit, for NHTSA approval, a quality assurance plan (QAP) for your EBT before ODAPC places the EBT on its Web page for “Approved Evidential Breath Measurement Devices.” (1) Your QAP must specify the methods used to perform external calibration checks on the EBT, the tolerances within which the EBT is regarded as being in proper calibration, and the intervals at which these checks must be performed. In designating these intervals, your QAP must take into account factors like frequency of use, environmental conditions ( e.g., temperature, humidity, altitude) and type of operation ( e.g., stationary or mobile). (2) Your QAP must also specify the inspection, maintenance, and calibration requirements and intervals for the EBT. (b) As the manufacturer, you must include, with each EBT, instructions for its use and care consistent with the QAP. (c) As the user of the EBT ( e.g., employer, service agent), you must do the following: (1) You must follow the manufacturer's instructions (see paragraph (b) of this section), including performance of external calibration checks at the intervals the instructions specify. (2) In conducting external calibration checks, you must use only calibration devices appearing on NHTSA's CPL for “Calibrating Units for Breath Alcohol Tests.” (3) If an EBT fails an external check of calibration, you must take the EBT out of service. You may not use the EBT again for DOT alcohol testing until it is repaired and passes an external calibration check. (4) You must maintain records of the inspection, maintenance, and calibration of EBTs as provided in § 40.333(a)(3). (5) You must ensure that inspection, maintenance, and calibration of the EBT are performed by its manufacturer or a maintenance representative certified either by the manufacturer or by a state health agency or other appropriate state agency. | ||||
| 49:49:1.0.1.1.30.11.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | K | Subpart K—Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing | § 40.235 What are the requirements for proper use and care of ASDs? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017] | (a) As an ASD manufacturer, you must submit, for NHTSA approval, a QAP for your ASD before NHTSA approves it and ODAPC places the device on its Web page for “Approved Screening Devices to Measure Alcohol in Bodily Fluids”. Your QAP must specify the methods used for quality control checks, temperatures at which the ASD must be stored and used, the shelf life of the device, and environmental conditions ( e.g., temperature, altitude, humidity) that may affect the ASD's performance. (b) As a manufacturer, you must include with each ASD instructions for its use and care consistent with the QAP. The instructions must include directions on the proper use of the ASD, and, where applicable the time within which the device must be read, and the manner in which the reading is made. (c) As the user of the ADS ( e.g., employer, STT), you must follow the QAP instructions. (d) You are not permitted to use an ASD that does not pass the specified quality control checks or that has passed its expiration date. (e) As an employer, with respect to breath ASDs, you must also follow the device use and care requirements of § 40.233 . | ||||
| 49:49:1.0.1.1.30.12.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | L | Subpart L—Alcohol Screening Tests | § 40.241 What are the first steps in any alcohol screening test? | DOT | As the BAT or STT you will take the following steps to begin all alcohol screening tests, regardless of the type of testing device you are using: (a) When a specific time for an employee's test has been scheduled, or the collection site is at the employee's worksite, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing. In a situation where a C/TPA has notified an owner/operator or other individual employee to report for testing and the employee does not appear, the C/TPA must notify the employee that he or she has refused to test. (b) Ensure that, when the employee enters the alcohol testing site, you begin the alcohol testing process without undue delay. For example, you must not wait because the employee says he or she is not ready or because an authorized employer or employee representative is delayed in arriving. (1) If the employee is also going to take a DOT drug test, you must, to the greatest extent practicable, ensure that the alcohol test is completed before the urine collection process begins. (2) If the employee needs medical attention ( e.g., an injured employee in an emergency medical facility who is required to have a post-accident test), do not delay this treatment to conduct a test. (c) Require the employee to provide positive identification. You must see a photo ID issued by the employer (other than in the case of an owner-operator or other self-employer individual) or a Federal, state, or local government ( e.g., a driver's license). You may not accept faxes or photocopies of identification. Positive identification by an employer representative (not a co-worker or another employee being tested) is also acceptable. If the employee cannot produce positive identification, you must contact a DER to verify the identi… | |||||
| 49:49:1.0.1.1.30.12.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | L | Subpart L—Alcohol Screening Tests | § 40.243 What is the procedure for an alcohol screening test using an EBT or non-evidential breath ASD? | DOT | As the BAT or STT, you must take the following steps: (a) Select, or allow the employee to select, an individually wrapped or sealed mouthpiece from the testing materials. (b) Open the individually wrapped or sealed mouthpiece in view of the employee and insert it into the device in accordance with the manufacturer's instructions. (c) Instruct the employee to blow steadily and forcefully into the mouthpiece for at least six seconds or until the device indicates that an adequate amount of breath has been obtained. (d) Show the employee the displayed test result. (e) If the device is one that prints the test number, testing device name and serial number, time, and result directly onto the ATF, you must check to ensure that the information has been printed correctly onto the ATF. (f) If the device is one that prints the test number, testing device name and serial number, time and result, but on a separate printout rather than directly onto the ATF, you must affix the printout of the information to the designated space on the ATF with tamper-evident tape or use a self-adhesive label that is tamper-evident. (g) If the device is one that does not print the test number, testing device name and serial number, time, and result, or it is a device not being used with a printer, you must record this information in Step 3 of the ATF. | |||||
| 49:49:1.0.1.1.30.12.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | L | Subpart L—Alcohol Screening Tests | § 40.245 What is the procedure for an alcohol screening test using a saliva ASD or a breath tube ASD? | DOT | [67 FR 61522, Oct. 1, 2002, as amended at 72 FR 1299, Jan. 11, 2007; 89 FR 51983, June 21, 2024] | (a) As the STT or BAT, you must take the following steps when using the saliva ASD: (1) Check the expiration date on the device or on the package containing the device and show it to the employee. You may not use the device after its expiration date. (2) Open an individually wrapped or sealed package containing the device in the presence of the employee. (3) Offer the employee the opportunity to use the device. If the employee uses it, you must instruct the employee to insert it into his or her mouth and use it in a manner described by the device's manufacturer. (4) If the employee chooses not to use the device, or in all cases in which a new test is necessary because the device did not activate (see paragraph (a)(7) of this section), you must insert the device into the employee's mouth and gather saliva in the manner described by the device's manufacturer. You must wear single-use examination or similar gloves while doing so and change them following each test. (5) When the device is removed from the employee's mouth, you must follow the manufacturer's instructions regarding necessary next steps in ensuring that the device has activated. (6)(i) If you were unable to successfully follow the procedures of paragraphs (a)(3) through (a)(5) of this section ( e.g., the device breaks, you drop the device on the floor), you must discard the device and conduct a new test using a new device. (ii) The new device you use must be one that has been under your control or that of the employer before the test. (iii) You must note on the “Remarks” line of the ATF the reason for the new test. (Note: You may continue using the same ATF with which you began the test.) (iv) You must offer the employee the choice of using the device or having you use it unless the employee, in the opinion of the STT or BAT, was responsible ( e.g., the employee dropped the device) for the new test needing to be conducted. (v) If you are unable to successfully follow the procedures of paragraphs (a)(3) through (a)(5) of this section on the n… | ||||
| 49:49:1.0.1.1.30.12.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | L | Subpart L—Alcohol Screening Tests | § 40.247 What procedures does the BAT or STT follow after a screening test result? | DOT | (a) If the test result is an alcohol concentration of less than 0.02, as the BAT or STT, you must do the following: (1) Sign and date Step 3 of the ATF; and (2) Transmit the result to the DER in a confidential manner, as provided in § 40.255 . (b) If the test result is an alcohol concentration of 0.02 or higher, as the BAT or STT, you must direct the employee to take a confirmation test. (1) If you are the BAT who will conduct the confirmation test, you must then conduct the test using the procedures beginning at § 40.251 . (2) If you are not the BAT who will conduct the confirmation test, direct the employee to take a confirmation test, sign and date Step 3 of the ATF, and give the employee Copy 2 of the ATF. (3) If the confirmation test will be performed at a different site from the screening test, you must take the following additional steps: (i) Advise the employee not to eat, drink, put anything ( e.g., cigarette, chewing gum) into his or her mouth, or belch; (ii) Tell the employee the reason for the waiting period required by § 40.251(a) ( i.e., to prevent an accumulation of mouth alcohol from leading to an artificially high reading); (iii) Explain that following your instructions concerning the waiting period is to the employee's benefit; (iv) Explain that the confirmation test will be conducted at the end of the waiting period, even if the instructions have not been followed; (v) Note on the “Remarks” line of the ATF that the waiting period instructions were provided; (vi) Instruct the person accompanying the employee to carry a copy of the ATF to the BAT who will perform the confirmation test; and (vii) Ensure that you or another BAT, STT, or employer representative observe the employee as he or she is transported to the confirmation testing site. You must direct the employee not to attempt to drive a motor vehicle to the confirmation testing site. (c) If the screening test is invalid, you must, as the BAT or STT, tell the employee the test is cancelled and note the problem on the “Remark… | |||||
| 49:49:1.0.1.1.30.13.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | M | Subpart M—Alcohol Confirmation Tests | § 40.251 What are the first steps in an alcohol confirmation test? | DOT | As the BAT for an alcohol confirmation test, you must follow these steps to begin the confirmation test process: (a) You must carry out a requirement for a waiting period before the confirmation test, by taking the following steps: (1) You must ensure that the waiting period lasts at least 15 minutes, starting with the completion of the screening test. After the waiting period has elapsed, you should begin the confirmation test as soon as possible, but not more than 30 minutes after the completion of the screening test. (i) If the confirmation test is taking place at a different location from the screening test (see § 40.247(b)(3)) the time of transit between sites counts toward the waiting period if the STT or BAT who conducted the screening test provided the waiting period instructions. (ii) If you cannot verify, through review of the ATF, that waiting period instructions were provided, then you must carry out the waiting period requirement. (iii) You or another BAT or STT, or an employer representative, must observe the employee during the waiting period. (2) Concerning the waiting period, you must tell the employee: (i) Not to eat, drink, put anything ( e.g., cigarette, chewing gum) into his or her mouth, or belch; (ii) The reason for the waiting period ( i.e., to prevent an accumulation of mouth alcohol from leading to an artificially high reading); (iii) That following your instructions concerning the waiting period is to the employee's benefit; and (iv) That the confirmation test will be conducted at the end of the waiting period, even if the instructions have not been followed. (3) If you become aware that the employee has not followed the instructions, you must note this on the “Remarks” line of the ATF. (b) If you did not conduct the screening test for the employee, you must require positive identification of the employee, explain the confirmation procedures, and use a new ATF. You must note on the “Remarks” line of the ATF that a different BAT or STT conducted the screening test. (c) Com… | |||||
| 49:49:1.0.1.1.30.13.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | M | Subpart M—Alcohol Confirmation Tests | § 40.253 What are the procedures for conducting an alcohol confirmation test? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001] | As the BAT conducting an alcohol confirmation test, you must follow these steps in order to complete the confirmation test process: (a) In the presence of the employee, you must conduct an air blank on the EBT you are using before beginning the confirmation test and show the reading to the employee. (1) If the reading is 0.00, the test may proceed. If the reading is greater than 0.00, you must conduct another air blank. (2) If the reading on the second air blank is 0.00, the test may proceed. If the reading is greater than 0.00, you must take the EBT out of service. (3) If you take an EBT out of service for this reason, no one may use it for testing until the EBT is found to be within tolerance limits on an external check of calibration. (4) You must proceed with the test of the employee using another EBT, if one is available. (b) You must open a new individually wrapped or sealed mouthpiece in view of the employee and insert it into the device in accordance with the manufacturer's instructions. (c) You must ensure that you and the employee read the unique test number displayed on the EBT. (d) You must instruct the employee to blow steadily and forcefully into the mouthpiece for at least six seconds or until the device indicates that an adequate amount of breath has been obtained. (e) You must show the employee the result displayed on the EBT. (f) You must show the employee the result and unique test number that the EBT prints out either directly onto the ATF or onto a separate printout. (g) If the EBT provides a separate printout of the result, you must attach the printout to the designated space on the ATF with tamper-evident tape, or use a self-adhesive label that is tamper-evident. | ||||
| 49:49:1.0.1.1.30.13.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | M | Subpart M—Alcohol Confirmation Tests | § 40.255 What happens next after the alcohol confirmation test result? | DOT | (a) After the EBT has printed the result of an alcohol confirmation test, you must, as the BAT, take the following additional steps: (1) Sign and date Step 3 of the ATF. (2) If the alcohol confirmation test result is lower than 0.02, nothing further is required of the employee. As the BAT, you must sign and date Step 3 of the ATF. (3) If the alcohol confirmation test result is 0.02 or higher, direct the employee to sign and date Step 4 of the ATF. If the employee does not do so, you must note this on the “Remarks” line of the ATF. However, this is not considered a refusal to test. (4) If the test is invalid, tell the employee the test is cancelled and note the problem on the “Remarks” line of the ATF. If practicable, conduct a re-test. (see § 40.271). (5) Immediately transmit the result directly to the DER in a confidential manner. (i) You may transmit the results using Copy 1 of the ATF, in person, by telephone, or by electronic means. In any case, you must immediately notify the DER of any result of 0.02 or greater by any means ( e.g., telephone or secure fax machine) that ensures the result is immediately received by the DER. You must not transmit these results through C/TPAs or other service agents. (ii) If you do not make the initial transmission in writing, you must follow up the initial transmission with Copy 1 of the ATF. (b) As an employer, you must take the following steps with respect to the receipt and storage of alcohol test result information: (1) If you receive any test results that are not in writing ( e.g., by telephone or electronic means), you must establish a mechanism to establish the identity of the BAT sending you the results. (2) You must store all test result information in a way that protects confidentiality. | |||||
| 49:49:1.0.1.1.30.14.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.261 What is a refusal to take an alcohol test, and what are the consequences? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 88 FR 27649, May 2, 2023] | (a) As an employee, you are considered to have refused to take an alcohol test if you: (1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see § 40.241(a)); (2) Fail to remain at the testing site until the testing process is complete. Provided that an employee who leaves the collection site before the testing process commences ( see § 40.243(a)) for a pre-employment test is not deemed to have refused to test. The BAT or STT is not required to inform an employee that the failure to remain at the collection site is a refusal. If an employee leaves prior to the completion of the testing process, per § 40.355(i) the employer must decide whether the employee's actions constitute a refusal; (3) Fail to provide an adequate amount of saliva or breath for any alcohol test required by this part or DOT agency regulations; Provided that an employee who does not provide an adequate amount of breath or saliva because he or she has left the testing site before the testing process commences ( see § 40.243(a)) for a pre-employment test is not deemed to have refused to test. The BAT or STT is not required to inform an employee that the failure to remain at the collection site is a refusal. If an employee leaves prior to the completion of the testing process, per § 40.355(i) the employer must decide whether the employee's actions constitute a refusal; (4) Fail to provide a sufficient breath specimen, and the physician has determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see § 40.265(c)); (5) Fail to undergo a medical examination or evaluation, as directed by the employer as part of the insufficient breath procedures outlined at § 40.265(c); (6) Fail to sign the certification at St… | ||||
| 49:49:1.0.1.1.30.14.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.263 What happens when an employee is unable to provide a sufficient amount of saliva for an alcohol screening test? | DOT | (a) As the STT, you must take the following steps if an employee is unable to provide sufficient saliva to complete a test on a saliva screening device ( e.g., the employee does not provide sufficient saliva to activate the device). (1) You must conduct a new screening test using a new screening device. (2) If the employee refuses to make the attempt to complete the new test, you must discontinue testing, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test. (3) If the employee has not provided a sufficient amount of saliva to complete the new test, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER. (b) As the DER, when the STT informs you that the employee has not provided a sufficient amount of saliva (see paragraph (a)(3) of this section), you must immediately arrange to administer an alcohol test to the employee using an EBT or other breath testing device. | |||||
| 49:49:1.0.1.1.30.14.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.265 What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test? | DOT | (a) If an employee does not provide a sufficient amount of breath to permit a valid breath test, you must take the steps listed in this section. (b) As the BAT or STT, you must instruct the employee to attempt again to provide a sufficient amount of breath and about the proper way to do so. (1) If the employee refuses to make the attempt, you must discontinue the test, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test. (2) If the employee again attempts and fails to provide a sufficient amount of breath, you may provide another opportunity to the employee to do so if you believe that there is a strong likelihood that it could result in providing a sufficient amount of breath. (3) When the employee's attempts under paragraph (b)(2) of this section have failed to produce a sufficient amount of breath, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER. (4) If you are using an EBT that has the capability of operating manually, you may attempt to conduct the test in manual mode. (5) If you are qualified to use a saliva ASD and you are in the screening test stage, you may change to a saliva ASD only to complete the screening test. (c) As the employer, when the BAT or STT informs you that the employee has not provided a sufficient amount of breath, you must direct the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to you and who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen. (1) You are required to provide the physician who will conduct the evaluation with the following information and instructions: (i) That the employee was required to take a DOT breath alcohol test, but was unable to provide a sufficient amount of breath to complete the test; (ii) The consequences of the appropriate DOT agency regulation for refusing to take the required alcohol test; (iii) That the physician must provide you with a signed statem… | |||||
| 49:49:1.0.1.1.30.14.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.267 What problems always cause an alcohol test to be cancelled? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 67 FR 61522, Oct. 1, 2002; 71 FR 49384, Aug. 23, 2006; 72 FR 1299, Jan. 11, 2007] | As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws.” You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: (a) In the case of a screening test conducted on a saliva ASD or a breath tube ASD: (1) The STT or BAT reads the result either sooner than or later than the time allotted by the manufacturer and this Part (see § 40.245(a)(8) for the saliva ASD and § 40.245(b)(8) for the breath tube ASD). (2) The saliva ASD does not activate ( see § 40.245(a)(7); or (3) The device is used for a test after the expiration date printed on the device or on its package (see § 40.245(a)(1) for the saliva ASD and § 40.245(b)(1) for the breath tube ASD). (4) The breath tube ASD is tested with an analyzer which has not been pre-calibrated for that device's specific lot (see § 40.245(b)(1)). (b) In the case of a screening or confirmation test conducted on an EBT, the sequential test number or alcohol concentration displayed on the EBT is not the same as the sequential test number or alcohol concentration on the printed result (see § 40.253(c), (e) and (f)). (c) In the case of a confirmation test: (1) The BAT conducts the confirmation test before the end of the minimum 15-minute waiting period (see § 40.251(a)(1)); (2) The BAT does not conduct an air blank before the confirmation test (see § 40.253(a)); (3) There is not a 0.00 result on the air blank conducted before the confirmation test (see § 40.253(a)(1) and (2)); (4) The EBT does not print the result (see § 40.253(f)); or (5) The next external calibration check of the EBT produces a result that differs by more than the tolerance stated in the QAP from the known value of the test standard. In this case, every result of 0.02 or above obtained on the EBT since the last valid external calibration check is cancelled (see § 40.233(a)(1) and (c)(3)). | ||||
| 49:49:1.0.1.1.30.14.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.269 What problems cause an alcohol test to be cancelled unless they are corrected? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006] | As a BAT or STT, or employer, you must cancel an alcohol test if any of the following problems occur, unless they are corrected. These are “correctable flaws.” These problems are: (a) The BAT or STT does not sign the ATF (see §§ 40.247(a)(1) and 40.255(a)(1)). (b) The BAT or STT fails to note on the “Remarks” line of the ATF that the employee has not signed the ATF after the result is obtained (see § 40.255(a)(3)). (c) The BAT or STT uses a non-DOT form for the test (see § 40.225(a)). | ||||
| 49:49:1.0.1.1.30.14.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.271 How are alcohol testing problems corrected? | DOT | (a) As a BAT or STT, you have the responsibility of trying to complete successfully an alcohol test for each employee. (1) If, during or shortly after the testing process, you become aware of any event that will cause the test to be cancelled (see § 40.267), you must try to correct the problem promptly, if practicable. You may repeat the testing process as part of this effort. (2) If repeating the testing process is necessary, you must begin a new test as soon as possible. You must use a new ATF, a new sequential test number, and, if needed, a new ASD and/or a new EBT. It is permissible to use additional technical capabilities of the EBT ( e.g., manual operation) if you have been trained to do so in accordance with § 40.213(c) . (3) If repeating the testing process is necessary, you are not limited in the number of attempts to complete the test, provided that the employee is making a good faith effort to comply with the testing process. (4) If another testing device is not available for the new test at the testing site, you must immediately notify the DER and advise the DER that the test could not be completed. As the DER who receives this information, you must make all reasonable efforts to ensure that the test is conducted at another testing site as soon as possible. (b) If, as an STT, BAT, employer or other service agent administering the testing process, you become aware of a “correctable flaw” (see § 40.269) that has not already been corrected, you must take all practicable action to correct the problem so that the test is not cancelled. (1) If the problem resulted from the omission of required information, you must, as the person responsible for providing that information, supply in writing the missing information and a signed statement that it is true and accurate. For example, suppose you are a BAT and you forgot to make a notation on the “Remarks” line of the ATF that the employee did not sign the certification. You would, when the problem is called to your attention, supply a signed statement tha… | |||||
| 49:49:1.0.1.1.30.14.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.273 What is the effect of a cancelled alcohol test? | DOT | (a) A cancelled alcohol test is neither positive nor negative. (1) As an employer, you must not attach to a cancelled test the consequences of a test result that is 0.02 or greater ( e.g., removal from a safety-sensitive position). (2) As an employer, you must not use a cancelled test in a situation where an employee needs a test result that is below 0.02 ( e.g., in the case of a return-to-duty or follow-up test to authorize the employee to perform safety-sensitive functions). (3) As an employer, you must not direct a recollection for an employee because a test has been cancelled, except in the situations cited in paragraph (a)(2) of this section or other provisions of this part. (b) A cancelled test does not count toward compliance with DOT requirements, such as a minimum random testing rate. (c) When a test must be cancelled, if you are the BAT, STT, or other person who determines that the cancellation is necessary, you must inform the affected DER within 48 hours of the cancellation. (d) A cancelled DOT test does not provide a valid basis for an employer to conduct a non-DOT test ( i.e., a test under company authority). | |||||
| 49:49:1.0.1.1.30.14.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test? | DOT | (a) As an STT, BAT, employer, or a service agent administering the testing process, you must document any errors in the testing process of which you become aware, even if they are not “fatal flaws” or “correctable flaws” listed in this subpart. Decisions about the ultimate impact of these errors will be determined by administrative or legal proceedings, subject to the limitation of paragraph (b) of this section. (b) No person concerned with the testing process may declare a test cancelled based on a mistake in the process that does not have a significant adverse effect on the right of the employee to a fair and accurate test. For example, it is inconsistent with this part to cancel a test based on a minor administrative mistake ( e.g., the omission of the employee's middle initial) or an error that does not affect employee protections under this part. Nor does the failure of an employee to sign in Step 4 of the ATF result in the cancellation of the test. Nor is a test to be cancelled on the basis of a claim by an employee that he or she was improperly selected for testing. (c) As an employer, these errors, even though not sufficient to cancel an alcohol test result, may subject you to enforcement action under DOT agency regulations. | |||||
| 49:49:1.0.1.1.30.14.43.9 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | N | Subpart N—Problems in Alcohol Testing | § 40.277 Are alcohol tests other than saliva or breath permitted under these regulations? | DOT | No, other types of alcohol tests ( e,g., blood and urine) are not authorized for testing done under this part. Only saliva or breath for screening tests and breath for confirmation tests using approved devices are permitted. | |||||
| 49:49:1.0.1.1.30.15.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.281 Who is qualified to act as a SAP? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 69 FR 3022, Jan. 22, 2004; 71 FR 49384; Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 82 FR 52246, Nov. 13, 2017; 88 FR 27649, May 2, 2023] | To be permitted to act as a SAP in the DOT drug and alcohol testing program, you must meet each of the requirements of this section: (a) Credentials. You must have one of the following credentials: (1) You are a licensed physician (Doctor of Medicine or Osteopathy); (2) You are a licensed or certified social worker; (3) You are a licensed or certified psychologist; (4) You are a licensed or certified employee assistance professional; (5) You are a state-licensed or certified marriage and family therapist; or (6) You are a drug and alcohol counselor certified by an organization listed at https://www.transportation.gov/odapc/sap . (b) Basic knowledge. You must be knowledgeable in the following areas: (1) You must be knowledgeable about and have clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders. (2) You must be knowledgeable about the SAP function as it relates to employer interests in safety-sensitive duties. (3) You must be knowledgeable about this part, the DOT agency regulations applicable to the employers for whom you evaluate employees, and the DOT SAP Guidelines. You must keep current on any changes to these materials. You must subscribe to the ODAPC list-serve at https://www.transportation.gov/odapc/get-odapc-email-updates. DOT agency regulations, DOT SAP Guidelines, and other materials are available from ODAPC (Department of Transportation, 1200 New Jersey Avenue SE., Washington DC, 20590 (202-366-3784), or on the ODAPC Web site ( http://www.transportation.gov/odapc ). (c) Qualification training. You must receive qualification training meeting the requirements of this paragraph (c). (1) Qualification training must provide instruction on the following subjects: (i) Background, rationale, and coverage of the Department's drug and alcohol testing program; (ii) 49 CFR Part 40 and DOT agency drug and alcohol testing rules; (iii) Key DOT drug testing requirements, including collections, laboratory testing, MRO review, and problems in… | ||||
| 49:49:1.0.1.1.30.15.43.10 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.299 What is the SAP's role and what are the limits on a SAP's discretion in referring employees for education and treatment? | DOT | (a) As a SAP, upon your determination of the best recommendation for assistance, you will serve as a referral source to assist the employee's entry into an education and/or treatment program. (b) To prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment or to a person or organization in which you have a financial interest. You are precluded from making referrals to entities with which you are financially associated. (c) There are four exceptions to the prohibitions contained in paragraph (b) of this section. You may refer an employee to any of the following providers of assistance, regardless of your relationship with them: (1) A public agency ( e.g., treatment facility) operated by a state, county, or municipality; (2) The employer or a person or organization under contract to the employer to provide alcohol or drug treatment and/or education services ( e.g., the employer's contracted treatment provider); (3) The sole source of therapeutically appropriate treatment under the employee's health insurance program ( e.g., the single substance abuse in-patient treatment program made available by the employee's insurance coverage plan); or (4) The sole source of therapeutically appropriate treatment reasonably available to the employee ( e.g., the only treatment facility or education program reasonably located within the general commuting area). | |||||
| 49:49:1.0.1.1.30.15.43.11 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.301 What is the SAP's function in the follow-up evaluation of an employee? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As a SAP, after you have prescribed assistance under § 40.293, you must re-evaluate the employee to determine if the employee has successfully carried out your education and/or treatment recommendations. (1) This is your way to gauge for the employer the employee's ability to demonstrate successful compliance with the education and/or treatment plan. (2) Your evaluation may serve as one of the reasons the employer decides to return the employee to safety-sensitive duty. (b) As the SAP making the follow-up evaluation determination, you must: (1) Confer with or obtain appropriate documentation from the appropriate education and/or treatment program professionals where the employee was referred; and (2) Conduct a clinical interview meeting the requirements of § 40.291(a)(1) with the employee to determine if the employee demonstrates successful compliance with your initial evaluation recommendations. (c) (1) If the employee has demonstrated successful compliance, you must provide a written report directly to the DER highlighting your clinical determination that the employee has done so with your initial evaluation recommendation (see § 40.311(d)). (2) You may determine that an employee has successfully demonstrated compliance even though the employee has not yet completed the full regimen of education and/or treatment you recommended or needs additional assistance. For example, if the employee has successfully completed the 30-day in-patient program you prescribed, you may make a “successful compliance” determination even though you conclude that the employee has not yet completed the out-patient counseling you recommended or should continue in an aftercare program. (d)(1) As the SAP, if you believe, as a result of the follow-up evaluation, that the employee has not demonstrated successful compliance with your recommendations, you must provide written notice directly to the DER (see § 40.311(e)). (2) As an employer who receives the SAP's written notice that the employee has not successfully complied with… | ||||
| 49:49:1.0.1.1.30.15.43.12 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.303 What happens if the SAP believes the employee needs additional treatment, aftercare, or support group services even after the employee returns to safety-sensitive duties? | DOT | (a) As a SAP, if you believe that ongoing services (in addition to follow-up tests) are needed to assist an employee to maintain sobriety or abstinence from drug use after the employee resumes the performance of safety-sensitive duties, you must provide recommendations for these services in your follow-up evaluation report (see § 40.311(d)(10)). (b) As an employer receiving a recommendation for these services from a SAP, you may, as part of a return-to-duty agreement with the employee, require the employee to participate in the recommended services. You may monitor and document the employee's participation in the recommended services. You may also make use of SAP and employee assistance program (EAP) services in assisting and monitoring employees' compliance with SAP recommendations. Nothing in this section permits an employer to fail to carry out its obligations with respect to follow-up testing (see § 40.309). (c) As an employee, you are obligated to comply with the SAP's recommendations for these services. If you fail or refuse to do so, you may be subject to disciplinary action by your employer. | |||||
| 49:49:1.0.1.1.30.15.43.13 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.305 How does the return-to-duty process conclude? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As the employer, if you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you must ensure that the employee takes a return-to-duty test. This test cannot occur until after the SAP has determined that the employee has successfully complied with prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties. (b) As an employer, you must not return an employee to safety-sensitive duties until the employee meets the conditions of paragraph (a) of this section. However, you are not required to return an employee to safety-sensitive duties because the employee has met these conditions. That is a personnel decision that you have the discretion to make, subject to collective bargaining agreements or other legal requirements. (c) As a SAP or MRO, you must not make a “fitness for duty” determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position. (d) As the employer, if a SAP who is otherwise fully qualified under this subpart performed a remote evaluation of the employee outside the geographic jurisdiction for their credential(s), the employee who they evaluated will not be required to seek the evaluation of a second SAP. If you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you will proceed with the requirements of paragraph (a) of this section. | ||||
| 49:49:1.0.1.1.30.15.43.14 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.307 What is the SAP's function in prescribing the employee's follow-up tests? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As a SAP, for each employee who has committed a DOT drug or alcohol regulation violation, and who seeks to resume the performance of safety-sensitive functions, you must establish a written follow-up testing plan. You do not establish this plan until after you determine that the employee has successfully complied with your recommendations for education and/or treatment. (b) You must present a copy of this plan directly to the DER (see § 40.311(d)(9)). (c) You are the sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both, unless otherwise directed by the appropriate DOT agency regulation. For example, if the employee had a positive drug test, but your evaluation or the treatment program professionals determined that the employee had an alcohol problem as well, you should require that the employee have follow-up tests for both drugs and alcohol. (d) However, you must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee's return to safety-sensitive functions. (1) You may require a greater number of follow-up tests during the first 12-month period of safety-sensitive duty ( e.g., you may require one test a month during the 12-month period; you may require two tests per month during the first 6-month period and one test per month during the final 6-month period). (2) You may also require follow-up tests during the 48 months of safety-sensitive duty following this first 12-month period. (3) You are not to establish the actual dates for the follow-up tests you prescribe. The decision on specific dates to test is the employer's. (4) As the employer, you must not impose additional testing requirements ( e.g., under company authority) on the employee that go beyond the SAP's follow-up testing plan. (e) The requirements of the SAP's follow-up testing plan “follow the employee” to subsequent employers or through breaks in service. (f) As th… | ||||
| 49:49:1.0.1.1.30.15.43.15 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.309 What are the employer's responsibilities with respect to the SAP's directions for follow-up tests? | DOT | (a) As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to continue to perform safety-sensitive functions unless follow-up testing is conducted as directed by the SAP. (b) You should schedule follow-up tests on dates of your own choosing, but you must ensure that the tests are unannounced with no discernable pattern as to their timing, and that the employee is given no advance notice. (c) You cannot substitute any other tests ( e.g., those carried out under the random testing program) conducted on the employee for this follow-up testing requirement. (d) You cannot count a follow-up test that has been cancelled as a completed test. A cancelled follow-up test must be recollected. | |||||
| 49:49:1.0.1.1.30.15.43.16 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.311 What are the requirements concerning SAP reports? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As the SAP conducting the required evaluations, you must send the written reports required by this section in writing directly to the DER and not to a third party or entity for forwarding to the DER (except as provided in § 40.355(e)). You may, however, forward the document simultaneously to the DER and to a C/TPA. (b) As an employer, you must ensure that you receive SAP written reports directly from the SAP performing the evaluation and that no third party or entity changed the SAP's report in any way. (c) The SAP's written report, following an initial evaluation that determines what level of assistance is needed to address the employee's drug and/or alcohol problems, must be on the SAP's own letterhead (and not the letterhead of another service agent) signed and dated by the SAP, and must contain the following delineated items: (1) Employee's name and SSN or employee ID No.; (2) Employer's name and address; (3) Reason for the assessment (specific violation of DOT regulations and violation date); (4) Date(s) and format ( i.e., face-to-face or remote) of the assessment; (5) SAP's education and/or treatment recommendation; and (6) SAP's telephone number. (d) The SAP's written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance must be on the SAP's own letterhead (and not the letterhead of another service agent), signed by the SAP and dated, and must contain the following items: (1) Employee's name and SSN or employee ID No.; (2) Employer's name and address; (3) Reason for the initial assessment (specific violation of DOT regulations and violation date); (4) Date(s) and format ( i.e., face-to-face or remote) of the initial assessment and synopsis of the treatment plan; (5) Name of practice(s) or service(s) providing the recommended education and/or treatment; (6) Inclusive dates of employee's program participation; (7) Clinical characterization of employee's program participation; (8) SAP's clinical determination as to whether the emplo… | ||||
| 49:49:1.0.1.1.30.15.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.283 How does a certification organization obtain recognition for its members as SAPs? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 88 FR 27650, May 2, 2023] | (a) If you represent a certification organization that wants DOT to authorize its certified drug and alcohol counselors to be added to § 40.281(a)(6), you may submit a written petition to DOT requesting a review of your petition for inclusion. (b) You must obtain the National Commission for Certifying Agencies (NCCA) accreditation before DOT will act on your petition. (c) You must also meet the minimum requirements of appendix G to this part before DOT will act on your petition. | ||||
| 49:49:1.0.1.1.30.15.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.285 When is a SAP evaluation required? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation. (b) For purposes of this subpart, a verified positive DOT drug test result, a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater, a refusal to test (including by adulterating or substituting a specimen) or any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation. | ||||
| 49:49:1.0.1.1.30.15.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.287 What information is an employer required to provide concerning SAP services to an employee who has a DOT drug and alcohol regulation violation? | DOT | As an employer, you must provide to each employee (including an applicant or new employee) who violates a DOT drug and alcohol regulation a listing of SAPs readily available to the employee and acceptable to you, with names, addresses, and telephone numbers. You cannot charge the employee any fee for compiling or providing this list. You may provide this list yourself or through a C/TPA or other service agent. | |||||
| 49:49:1.0.1.1.30.15.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.289 Are employers required to provide SAP and treatment services to employees? | DOT | (a) As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation. (b) However, if you offer that employee an opportunity to return to a DOT safety-sensitive duty following a violation, you must, before the employee again performs that duty, ensure that the employee receives an evaluation by a SAP meeting the requirements of § 40.281 and that the employee successfully complies with the SAP's evaluation recommendations. (c) Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits. | |||||
| 49:49:1.0.1.1.30.15.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.291 What is the role of the SAP in the evaluation, referral, and treatment process of an employee who has violated DOT agency drug and alcohol testing regulations? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023; 89 FR 51983, June 21, 2024] | (a) As a SAP, you are charged with: (1) Making a clinical assessment and evaluation to determine what assistance is needed by the employee to resolve problems associated with alcohol and/or drug use. At the SAP's discretion, this assessment or evaluation may be performed face-to-face in-person or remotely. If a SAP is not prohibited from using technology within the parameters of the SAP's State-issued license or other credential(s), a remote evaluation must be conducted in accordance with the following criteria: (i) The technology must permit real-time audio and visual interaction between the SAP and the employee; and (ii) The quality of the technology ( e.g., speed of the internet connection and clarity of the video display) must be sufficient to allow the SAP to gather all the visual and audible information the SAP would otherwise gather in an in-person face-to-face interaction, while providing security to protect the confidentiality of the communications at the level expected by industry standards for remote substance abuse evaluations. (2) Referring the employee to an appropriate education and/or treatment program; (3) Conducting a follow-up evaluation to determine if the employee has actively participated in the education and/or treatment program and has demonstrated successful compliance with the initial assessment and evaluation recommendations. This assessment or evaluation may be performed face-to-face in-person or remotely. A face-to-face remote evaluation must meet the criteria in paragraphs (a)(1)(i) and (ii) of this section. (4) Providing the DER with a follow-up drug and/or alcohol testing plan for the employee; and (5) Providing the employee and employer with recommendations for continuing education and/or treatment. (b) As a SAP, you are not an advocate for the employer or employee. Your function is to protect the public interest in safety by professionally evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare. | ||||
| 49:49:1.0.1.1.30.15.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.293 What is the SAP's function in conducting the initial evaluation of an employee? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | As a SAP, for every employee who comes to you following a DOT drug and alcohol regulation violation, you must accomplish the following: (a) Provide a comprehensive assessment and clinical evaluation meeting the requirements of § 40.291(a)(1). (b) Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty. (1) You must make such a recommendation for every individual who has violated a DOT drug and alcohol regulation. (2) You must make a recommendation for education and/or treatment that will, to the greatest extent possible, protect public safety in the event that the employee returns to the performance of safety-sensitive functions. (c) Appropriate education may include, but is not limited to, self-help groups ( e.g., Alcoholics Anonymous) and community lectures, where attendance can be independently verified, and bona fide drug and alcohol education courses. (d) Appropriate treatment may include, but is not limited to, in-patient hospitalization, partial in-patient treatment, out-patient counseling programs, and aftercare. (e) You must assess and clinically evaluate each employee on an individual basis and use your professional judgment to determine education and/or treatment, as well as a follow-up testing plan unique to the needs of the individual employee. For example, do not require the same and/or substantially similar education, treatment, and/or follow-up testing plan for most of the employees you assess. (f) You must provide a written report directly to the DER highlighting your specific recommendations for assistance (see § 40.311(c)). (g) For purposes of your role in the evaluation process, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation. You must not take into consideration in any way, as a factor in determining what your recommendation will be, any of the following: (1) A claim by the e… | ||||
| 49:49:1.0.1.1.30.15.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.295 May employees or employers seek a second SAP evaluation if they disagree with the first SAP's recommendations? | DOT | (a) As an employee with a DOT drug and alcohol regulation violation, when you have been evaluated by a SAP, you must not seek a second SAP's evaluation in order to obtain another recommendation. (b) As an employer, you must not seek a second SAP's evaluation if the employee has already been evaluated by a qualified SAP. If the employee, contrary to paragraph (a) of this section, has obtained a second SAP evaluation, as an employer you may not rely on it for any purpose under this part. | |||||
| 49:49:1.0.1.1.30.15.43.9 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | O | Subpart O—Substance Abuse Professionals and the Return-to-Duty Process | § 40.297 Does anyone have the authority to change a SAP's initial evaluation? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) Except as provided in paragraph (b) of this section, no one ( e.g., an employer, employee, a managed-care provider, any service agent) may change in any way the SAP's evaluation or recommendations for assistance. For example, a third party is not permitted to make more or less stringent a SAP's recommendation by changing the SAP's evaluation or seeking another SAP's evaluation. (b) The SAP who made the initial evaluation may modify his or her initial evaluation and recommendations based on new or additional information ( e.g., from an education or treatment program). (c) The SAP, who is otherwise fully qualified under this subpart, must not perform evaluations outside the geographic jurisdiction for their credential(s). If the SAP who made the evaluation exceeds their geographic jurisdiction, the employee will not be required to seek the evaluation of a second SAP. | ||||
| 49:49:1.0.1.1.30.16.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.321 What is the general confidentiality rule for drug and alcohol test information? | DOT | Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent. (a) A “third party” is any person or organization to whom other subparts of this regulation do not explicitly authorize or require the transmission of information in the course of the drug or alcohol testing process. (b) “Specific written consent” means a statement signed by the employee that he or she agrees to the release of a particular piece of information to a particular, explicitly identified, person or organization at a particular time. “Blanket releases,” in which an employee agrees to a release of a category of information ( e.g., all test results) or to release information to a category of parties ( e.g., other employers who are members of a C/TPA, companies to which the employee may apply for employment), are prohibited under this part. | |||||
| 49:49:1.0.1.1.30.16.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.323 May program participants release drug or alcohol test information in connection with legal proceedings? | DOT | (a) As an employer, you may release information pertaining to an employee's drug or alcohol test without the employee's consent in certain legal proceedings. (1) These proceedings include a lawsuit ( e.g., a wrongful discharge action), grievance ( e.g., an arbitration concerning disciplinary action taken by the employer), or administrative proceeding ( e.g., an unemployment compensation hearing) brought by, or on behalf of, an employee and resulting from a positive DOT drug or alcohol test or a refusal to test (including, but not limited to, adulterated or substituted test results). (2) These proceedings also include a criminal or civil action resulting from an employee's performance of safety-sensitive duties, in which a court of competent jurisdiction determines that the drug or alcohol test information sought is relevant to the case and issues an order directing the employer to produce the information. For example, in personal injury litigation following a truck or bus collision, the court could determine that a post-accident drug test result of an employee is relevant to determining whether the driver or the driver's employer was negligent. The employer is authorized to respond to the court's order to produce the records. (b) In such a proceeding, you may release the information to the decisionmaker in the proceeding ( e.g., the court in a lawsuit). You may release the information only with a binding stipulation that the decisionmaker to whom it is released will make it available only to parties to the proceeding. (c) If you are a service agent, and the employer requests its employee's drug or alcohol testing information from you to use in a legal proceeding as authorized in paragraph (a) of this section ( e.g., the laboratory's data package), you must provide the requested information to the employer. (d) As an employer or service agent, you must immediately notify the employee in writing of any information you release under this section. | |||||
| 49:49:1.0.1.1.30.16.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.325 [Reserved] | DOT | ||||||
| 49:49:1.0.1.1.30.16.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.327 When must the MRO report medical information gathered in the verification process? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As the MRO, you must, except as provided in paragraph (d) of this section, report drug test results and medical information you learned as part of the verification process to third parties without the employee's consent if you determine, in your reasonable medical judgment, that: (1) The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or (2) The information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk. (b) The third parties to whom you are authorized to provide information by this section include the employer, a physician or other health care provider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP evaluating the employee as part of the return to duty process (see § 40.293(g)), a DOT agency, or the National Transportation Safety Board in the course of an accident investigation. (c) The MRO must not report such medical information using the CCF. Instead, the MRO must provide the information in a separate written communication ( e.g., letter, secure email). The information must state the specific nature of the MRO's safety concern ( e.g., the effects of a medication the employee is taking, the employee's underlying medical condition that the employee disclosed to the MRO). (d) If the law of a foreign country ( e.g., Canada) prohibits you from providing medical information to the employer, you may comply with that prohibition. | ||||
| 49:49:1.0.1.1.30.16.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.329 What information must laboratories, MROs, and other service agents release to employees? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001] | (a) As an MRO or service agent you must provide, within 10 business days of receiving a written request from an employee, copies of any records pertaining to the employee's use of alcohol and/or drugs, including records of the employee's DOT-mandated drug and/or alcohol tests. You may charge no more than the cost of preparation and reproduction for copies of these records. (b) As a laboratory, you must provide, within 10 business days of receiving a written request from an employee, and made through the MRO, the records relating to the results of the employee's drug test ( i.e., laboratory report and data package). You may charge no more than the cost of preparation and reproduction for copies of these records. (c) As a SAP, you must make available to an employee, on request, a copy of all SAP reports (see § 40.311). However, you must redact follow-up testing information from the report before providing it to the employee. | ||||
| 49:49:1.0.1.1.30.16.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.331 To what additional parties must employers and service agents release information? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 FR 33737, June 13, 2008; 82 FR 52247, Nov. 13, 2017] | As an employer or service agent you must release information under the following circumstances: (a) If you receive a specific, written consent from an employee authorizing the release of information about that employee's drug or alcohol tests to an identified person, you must provide the information to the identified person. For example, as an employer, when you receive a written request from a former employee to provide information to a subsequent employer, you must do so. In providing the information, you must comply with the terms of the employee's consent. (b) If you are an employer, you must, upon request of DOT agency representatives, provide the following: (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions. (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency. (3) All items in paragraph (b)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards. (c) If you are a service agent, you must, upon request of DOT agency representatives, provide the following: (1) Access to your facilities used for this part and DOT agency drug and alcohol program functions. (2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by t… | ||||
| 49:49:1.0.1.1.30.16.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | P | Subpart P—Confidentiality and Release of Information | § 40.333 What records must employers keep? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001] | (a) As an employer, you must keep the following records for the following periods of time: (1) You must keep the following records for five years: (i) Records of alcohol test results indicating an alcohol concentration of 0.02 or greater; (ii) Records of verified positive drug test results; (iii) Documentation of refusals to take required alcohol and/or drug tests (including substituted or adulterated drug test results); (iv) SAP reports; and (v) All follow-up tests and schedules for follow-up tests. (2) You must keep records for three years of information obtained from previous employers under § 40.25 concerning drug and alcohol test results of employees. (3) You must keep records of the inspection, maintenance, and calibration of EBTs, for two years. (4) You must keep records of negative and cancelled drug test results and alcohol test results with a concentration of less than 0.02 for one year. (b) You do not have to keep records related to a program requirement that does not apply to you ( e.g., a maritime employer who does not have a DOT-mandated random alcohol testing program need not maintain random alcohol testing records). (c) You must maintain the records in a location with controlled access. (d) A service agent may maintain these records for you. However, you must ensure that you can produce these records at your principal place of business in the time required by the DOT agency. For example, as a motor carrier, when an FMCSA inspector requests your records, you must ensure that you can provide them within two business days. (e) If you store records electronically, where permitted by this part, you must ensure that the records are easily accessible, legible, and formatted and stored in an organized manner. If electronic records do not meet these criteria, you must convert them to printed documentation in a rapid and readily auditable manner, at the request of DOT agency personnel. | ||||
| 49:49:1.0.1.1.30.17.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.341 Must service agents comply with DOT drug and alcohol testing requirements? | DOT | (a) As a service agent, the services you provide to transportation employers must meet the requirements of this part and the DOT agency drug and alcohol testing regulations. (b) If you do not comply, DOT may take action under the Public Interest Exclusions procedures of this part (see Subpart R of this part) or applicable provisions of other DOT agency regulations. | |||||
| 49:49:1.0.1.1.30.17.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.343 What tasks may a service agent perform for an employer? | DOT | As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of this part. | |||||
| 49:49:1.0.1.1.30.17.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.345 In what circumstances may a C/TPA act as an intermediary in the transmission of drug and alcohol testing information to employers? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] | (a) As a C/TPA or other service agent, you may act as an intermediary in the transmission of drug and alcohol testing information in the circumstances specified in this section only if the employer chooses to have you do so. Each employer makes the decision about whether to receive some or all of this information from you, acting as an intermediary, rather than directly from the service agent who originates the information ( e.g., an MRO or BAT). (b) The specific provisions of this part concerning which you may act as an intermediary are listed in appendix H to this part. These are the only situations in which you may act as an intermediary. You are prohibited from doing so in all other situations. (c) In every case, you must ensure that, in transmitting information to employers, you meet all requirements ( e.g., concerning confidentiality and timing) that would apply if the service agent originating the information ( e.g., an MRO or collector) sent the information directly to the employer. For example, if you transmit drug testing results from MROs to DERs, you must transmit each drug test result to the DER in compliance with the MRO requirements set forth in § 40.167. | ||||
| 49:49:1.0.1.1.30.17.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.347 What functions may C/TPAs perform with respect to administering testing? | DOT | As a C/TPA, except as otherwise specified in this part, you may perform the following functions for employers concerning random selection and other selections for testing. (a) You may operate random testing programs for employers and may assist ( i.e., through contracting with laboratories or collection sites, conducting collections) employers with other types of testing ( e.g., pre-employment, post-accident, reasonable suspicion, return-to-duty, and follow-up). (b) You may combine employees from more than one employer or one transportation industry in a random pool if permitted by all the DOT agency drug and alcohol testing regulations involved. (1) If you combine employees from more than one transportation industry, you must ensure that the random testing rate is at least equal to the highest rate required by each DOT agency. (2) Employees not covered by DOT agency regulations may not be part of the same random pool with DOT covered employees. (c) You may assist employers in ensuring that follow-up testing is conducted in accordance with the plan established by the SAP. However, neither you nor the employer are permitted to randomly select employees from a “follow-up pool” for follow-up testing. | |||||
| 49:49:1.0.1.1.30.17.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.349 What records may a service agent receive and maintain? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001] | (a) Except where otherwise specified in this part, as a service agent you may receive and maintain all records concerning DOT drug and alcohol testing programs, including positive, negative, and refusal to test individual test results. You do not need the employee's consent to receive and maintain these records. (b) You may maintain all information needed for operating a drug/alcohol program ( e.g., CCFs, ATFs, names of employees in random pools, random selection lists, copies of notices to employers of selected employees) on behalf of an employer. (c) If a service agent originating drug or alcohol testing information, such as an MRO or BAT, sends the information directly to the DER, he or she may also provide the information simultaneously to you, as a C/TPA or other service agent who maintains this information for the employer. (d) If you are serving as an intermediary in transmitting information that is required to be provided to the employer, you must ensure that it reaches the employer in the same time periods required elsewhere in this part. (e) You must ensure that you can make available to the employer within two business days any information the employer is asked to produce by a DOT agency representative. (f) On request of an employer, you must, at any time on the request of an employer, transfer immediately all records pertaining to the employer and its employees to the employer or to any other service agent the employer designates. You must carry out this transfer as soon as the employer requests it. You are not required to obtain employee consent for this transfer. You must not charge more than your reasonable administrative costs for conducting this transfer. You may not charge a fee for the release of these records. (g) If you are planning to go out of business or your organization will be bought by or merged with another organization, you must immediately notify all employers and offer to transfer all records pertaining to the employer and its employees to the employer or to any other servic… | ||||
| 49:49:1.0.1.1.30.17.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.351 What confidentiality requirements apply to service agents? | DOT | Except where otherwise specified in this part, as a service agent the following confidentiality requirements apply to you: (a) When you receive or maintain confidential information about employees ( e.g., individual test results), you must follow the same confidentiality regulations as the employer with respect to the use and release of this information. (b) You must follow all confidentiality and records retention requirements applicable to employers. (c) You may not provide individual test results or other confidential information to another employer without a specific, written consent from the employee. For example, suppose you are a C/TPA that has employers X and Y as clients. Employee Jones works for X, and you maintain Jones' drug and alcohol test for X. Jones wants to change jobs and work for Y. You may not inform Y of the result of a test conducted for X without having a specific, written consent from Jones. Likewise, you may not provide this information to employer Z, who is not a C/TPA member, without this consent. (d) You must not use blanket consent forms authorizing the release of employee testing information. (e) You must establish adequate confidentiality and security measures to ensure that confidential employee records are not available to unauthorized persons. This includes protecting the physical security of records, access controls, and computer security measures to safeguard confidential data in electronic data bases. | |||||
| 49:49:1.0.1.1.30.17.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.353 What principles govern the interaction between MROs and other service agents? | DOT | As a service agent other than an MRO ( e.g., a C/TPA), the following principles govern your interaction with MROs: (a) You may provide MRO services to employers, directly or through contract, if you meet all applicable provisions of this part. (b) If you employ or contract for an MRO, the MRO must perform duties independently and confidentially. When you have a relationship with an MRO, you must structure the relationship to ensure that this independence and confidentiality are not compromised. Specific means (including both physical and operational measures, as appropriate) to separate MRO functions and other service agent functions are essential. (c) Only your staff who are actually under the day-to-day supervision and control of an MRO with respect to MRO functions may perform these functions. This does not mean that those staff may not perform other functions at other times. However, the designation of your staff to perform MRO functions under MRO supervision must be limited and not used as a subterfuge to circumvent confidentiality and other requirements of this part and DOT agency regulations. You must ensure that MRO staff operate under controls sufficient to ensure that the independence and confidentiality of the MRO process are not compromised. (d) Like other MROs, an MRO you employ or contract with must personally conduct verification interviews with employees and must personally make all verification decisions. Consequently, your staff cannot perform these functions. | |||||
| 49:49:1.0.1.1.30.17.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | Q | Subpart Q—Roles and Responsibilities of Service Agents | § 40.355 What limitations apply to the activities of service agents? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 71 FR 49384, Aug. 23, 2006; 75 FR 59108, Sept. 27, 2010; 88 FR 27650, May 2, 2023] | As a service agent, you are subject to the following limitations concerning your activities in the DOT drug and alcohol testing program. (a) 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). No one may do so on behalf of a service agent. (b) You must not act as an intermediary in the transmission of drug test results from the laboratory to the MRO. That is, the laboratory may not send results to you, with you in turn sending them to the MRO for verification. For example, a practice in which the laboratory transmits results to your computer system, and you then assign the results to a particular MRO, is not permitted. (c) You must not transmit drug test results directly from the laboratory to the employer (by electronic or other means) or to a service agent who forwards them to the employer. All confirmed laboratory results must be processed by the MRO before they are released to any other party. (d) You must not act as an intermediary in the transmission of alcohol test results of 0.02 or higher from the STT or BAT to the DER. (e) Except as provided in paragraph (f) of this section, you must not act as an intermediary in the transmission of individual SAP reports to the actual employer. That is, the SAP may not send such reports to you, with you in turn sending them to the actual employer. However, you may maintain individual SAP summary reports and follow-up testing plans after they are sent to the DER, and the SAP may transmit such reports to you simultaneously with sending them to the DER. (f) As an exception to paragraph (e) of this section, you may act as an intermediary in the transmission of SAP report from the SAP to an owner-operator or other self-employed individual. (g) Except as provided in paragraph (h) of this section, you must not make decisions to test an empl… | ||||
| 49:49:1.0.1.1.30.18.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.361 What is the purpose of a public interest exclusion (PIE)? | DOT | (a) To protect the public interest, including protecting transportation employers and employees from serious noncompliance with DOT drug and alcohol testing rules, the Department's policy is to ensure that employers conduct business only with responsible service agents. (b) The Department therefore uses PIEs to exclude from participation in DOT's drug and alcohol testing program any service agent who, by serious noncompliance with this part or other DOT agency drug and alcohol testing regulations, has shown that it is not currently acting in a responsible manner. (c) A PIE is a serious action that the Department takes only to protect the public interest. We intend to use PIEs only to remedy situations of serious noncompliance. PIEs are not used for the purpose of punishment. (d) Nothing in this subpart precludes a DOT agency or the Inspector General from taking other action authorized by its regulations with respect to service agents or employers that violate its regulations. | |||||
| 49:49:1.0.1.1.30.18.43.10 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.379 How do you contest the issuance of a PIE? | DOT | (a) If you receive a NOPE, you may contest the issuance of the PIE. (b) If you want to contest the proposed PIE, you must provide the Director information and argument in opposition to the proposed PIE in writing, in person, and/or through a representative. To contest the proposed PIE, you must take one or more of the steps listed in this paragraph (b) within 30 days after you receive the NOPE. (1) You may request that the Director dismiss the proposed PIE without further proceedings, on the basis that it does not concern serious noncompliance with this part or DOT agency regulations, consistent with the Department's policy as stated in § 40.365. (2) You may present written information and arguments, consistent with the provisions of § 40.381, contesting the proposed PIE. (3) You may arrange with the Director for an informal meeting to present your information and arguments. (c) If you do not take any of the actions listed in paragraph (b) of this section within 30 days after you receive the NOPE, the matter proceeds as an uncontested case. In this event, the Director makes his or her decision based on the record provided by the initiating official ( i.e., the NOPE and any supporting information or testimony) and any additional information the Director obtains. | |||||
| 49:49:1.0.1.1.30.18.43.11 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.381 What information do you present to contest the proposed issuance of a PIE? | DOT | (a) As a service agent who wants to contest a proposed PIE, you must present at least the following information to the Director: (1) Specific facts that contradict the statements contained in the NOPE (see § 40.375(b)(2) and (3)). A general denial is insufficient to raise a genuine dispute over facts material to the issuance of a PIE; (2) Identification of any existing, proposed or prior PIE; and (3) Identification of your affiliates, if any. (b) You may provide any information and arguments you wish concerning the proposed issuance, scope and duration of the PIE (see § 40.375(b)(4) and (5)). (c) You may provide any additional relevant information or arguments concerning any of the issues in the matter. | |||||
| 49:49:1.0.1.1.30.18.43.12 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.383 What procedures apply if you contest the issuance of a PIE? | DOT | (a) DOT conducts PIE proceedings in a fair and informal manner. The Director may use flexible procedures to allow you to present matters in opposition. The Director is not required to follow formal rules of evidence or procedure in creating the record of the proceeding. (b) The Director will consider any information or argument he or she determines to be relevant to the decision on the matter. (c) You may submit any documentary evidence you want the Director to consider. In addition, if you have arranged an informal meeting with the Director, you may present witnesses and confront any person the initiating official presents as a witness against you. (d) In cases where there are material factual issues in dispute, the Director or his or her designee may conduct additional fact-finding. (e) If you have arranged a meeting with the Director, the Director will make a transcribed record of the meeting available to you on your request. You must pay the cost of transcribing and copying the meeting record. | |||||
| 49:49:1.0.1.1.30.18.43.13 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.385 Who bears the burden of proof in a PIE proceeding? | DOT | (a) As the proponent of issuing a PIE, the initiating official bears the burden of proof. (b) This burden is to demonstrate, by a preponderance of the evidence, that the service agent was in serious noncompliance with the requirements of this part for drug and/or alcohol testing-related services or with the requirements of another DOT agency drug and alcohol testing regulation. | |||||
| 49:49:1.0.1.1.30.18.43.14 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.387 What matters does the Director decide concerning a proposed PIE? | DOT | (a) Following the service agent's response (see § 40.379(b)) or, if no response is received, after 30 days have passed from the date on which the service agent received the NOPE, the Director may take one of the following steps: (1) In response to a request from the service agent (see § 40.379(b)(1)) or on his or her own motion, the Director may dismiss a PIE proceeding if he or she determines that it does not concern serious noncompliance with this part or DOT agency regulations, consistent with the Department's policy as stated in § 40.365. (i) If the Director dismisses a proposed PIE under this paragraph (a), the action is closed with respect to the noncompliance alleged in the NOPE. (ii) The Department may initiate a new PIE proceeding against you on the basis of different or subsequent conduct that is in noncompliance with this part or other DOT drug and alcohol testing rules. (2) If the Director determines that the initiating official's submission does not have complete information needed for a decision, the Director may remand the matter to the initiating official. The initiating official may resubmit the matter to the Director when the needed information is complete. If the basis for the proposed PIE has changed, the initiating official must send an amended NOPE to the service agent. (b) The Director makes determinations concerning the following matters in any PIE proceeding that he or she decides on the merits: (1) Any material facts that are in dispute; (2) Whether the facts support issuing a PIE; (3) The scope of any PIE that is issued; and (4) The duration of any PIE that is issued. | |||||
| 49:49:1.0.1.1.30.18.43.15 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.389 What factors may the Director consider? | DOT | This section lists examples of the kind of mitigating and aggravating factors that the Director may consider in determining whether to issue a PIE concerning you, as well as the scope and duration of a PIE. This list is not exhaustive or exclusive. The Director may consider other factors if appropriate in the circumstances of a particular case. The list of examples follows: (a) The actual or potential harm that results or may result from your noncompliance; (b) The frequency of incidents and/or duration of the noncompliance; (c) Whether there is a pattern or prior history of noncompliance; (d) Whether the noncompliance was pervasive within your organization, including such factors as the following: (1) Whether and to what extent your organization planned, initiated, or carried out the noncompliance; (2) The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and (3) Whether you had effective standards of conduct and control systems (both with respect to your own organization and any contractors or affiliates) at the time the noncompliance occurred; (e) Whether you have demonstrated an appropriate compliance disposition, including such factors as the following: (1) Whether you have accepted responsibility for the noncompliance and recognize the seriousness of the conduct that led to the cause for issuance of the PIE; (2) Whether you have cooperated fully with the Department during the investigation. The Director may consider when the cooperation began and whether you disclosed all pertinent information known to you; (3) Whether you have fully investigated the circumstances of the noncompliance forming the basis for the PIE and, if so, have made the result of the investigation available to the Director; (4) Whether you have taken appropriate disciplinary action against the individuals responsible for the activity that constitutes the grounds for issuance of the PIE; and (5) Whether your organization has taken appropriate corrective act… | |||||
| 49:49:1.0.1.1.30.18.43.16 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.391 What is the scope of a PIE? | DOT | (a) The scope of a PIE is the Department's determination about the divisions, organizational elements, types of services, affiliates, and/or individuals (including direct employees of a service agent and its contractors) to which a PIE applies. (b) If, as a service agent, the Department issues a PIE concerning you, the PIE applies to all your divisions, organizational elements, and types of services that are involved with or affected by the noncompliance that forms the factual basis for issuing the PIE. (c) In the NOPE (see § 40.375(b)(4)), the initiating official sets forth his or her recommendation for the scope of the PIE. The proposed scope of the PIE is one of the elements of the proceeding that the service agent may contest (see § 40.381(b)) and about which the Director makes a decision (see § 40.387(b)(3)). (d) In recommending and deciding the scope of the PIE, the initiating official and Director, respectively, must take into account the provisions of paragraphs (e) through (j) of this section. (e) The pervasiveness of the noncompliance within a service agent's organization (see § 40.389(d)) is an important consideration in determining the scope of a PIE. The appropriate scope of a PIE grows broader as the pervasiveness of the noncompliance increases. (f) The application of a PIE is not limited to the specific location or employer at which the conduct that forms the factual basis for issuing the PIE was discovered. (g) A PIE applies to your affiliates, if the affiliate is involved with or affected by the conduct that forms the factual basis for issuing the PIE. (h) A PIE applies to individuals who are officers, employees, directors, shareholders, partners, or other individuals associated with your organization in the following circumstances: (1) Conduct forming any part of the factual basis of the PIE occurred in connection with the individual's performance of duties by or on behalf of your organization; or (2) The individual knew of, had reason to know of, approved, or acquiesced in such conduct… | |||||
| 49:49:1.0.1.1.30.18.43.17 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.393 How long does a PIE stay in effect? | DOT | (a) In the NOPE (see § 40.375(b)(5)), the initiating official proposes the duration of the PIE. The duration of the PIE is one of the elements of the proceeding that the service agent may contest (see § 40.381(b)) and about which the Director makes a decision (see § 40.387(b)(4)). (b) In deciding upon the duration of the PIE, the Director considers the seriousness of the conduct on which the PIE is based and the continued need to protect employers and employees from the service agent's noncompliance. The Director considers factors such as those listed in § 40.389 in making this decision. (c) The duration of a PIE will be between one and five years, unless the Director reduces its duration under § 40.407. | |||||
| 49:49:1.0.1.1.30.18.43.18 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.395 Can you settle a PIE proceeding? | DOT | At any time before the Director's decision, you and the initiating official can, with the Director's concurrence, settle a PIE proceeding. | |||||
| 49:49:1.0.1.1.30.18.43.19 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.397 When does the Director make a PIE decision? | DOT | The Director makes his or her decision within 60 days of the date when the record of a PIE proceeding is complete (including any meeting with the Director and any additional fact-finding that is necessary). The Director may extend this period for good cause for additional periods of up to 30 days. | |||||
| 49:49:1.0.1.1.30.18.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.363 On what basis may the Department issue a PIE? | DOT | (a) If you are a service agent, the Department may issue a PIE concerning you if we determine that you have failed or refused to provide drug or alcohol testing services consistent with the requirements of this part or a DOT agency drug and alcohol regulation. (b) The Department also may issue a PIE if you have failed to cooperate with DOT agency representatives concerning inspections, complaint investigations, compliance and enforcement reviews, or requests for documents and other information about compliance with this part or DOT agency drug and alcohol regulations. | |||||
| 49:49:1.0.1.1.30.18.43.20 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.399 How does the Department notify service agents of its decision? | DOT | If you are a service agent involved in a PIE proceeding, the Director provides you written notice as soon as he or she makes a PIE decision. The notice includes the following elements: (a) If the decision is not to issue a PIE, a statement of the reasons for the decision, including findings of fact with respect to any material factual issues that were in dispute. (b) If the decision is to issue a PIE— (1) A reference to the NOPE; (2) A statement of the reasons for the decision, including findings of fact with respect to any material factual issues that were in dispute; (3) A statement of the scope of the PIE; and (4) A statement of the duration of the PIE. | |||||
| 49:49:1.0.1.1.30.18.43.21 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.401 How does the Department notify employers and the public about a PIE? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52247, Nov. 13, 2017] | (a) The Department maintains a document called the “List of Excluded Drug and Alcohol Service Agents.” This document may be found on the Department's web site ( http://www.transportation.gov/odapc ) . You may also request a copy of the document from ODAPC. (b) When the Director issues a PIE, he or she adds to the List the name and address of the service agent, and any other persons or organizations, to whom the PIE applies and information about the scope and duration of the PIE. (c) When a service agent ceases to be subject to a PIE, the Director removes this information from the List. (d) The Department also publishes a Federal Register notice to inform the public on any occasion on which a service agent is added to or taken off the List. | ||||
| 49:49:1.0.1.1.30.18.43.22 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.403 Must a service agent notify its clients when the Department issues a PIE? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001] | (a) As a service agent, if the Department issues a PIE concerning you, you must notify each of your DOT-regulated employer clients, in writing, about the issuance, scope, duration, and effect of the PIE. You may meet this requirement by sending a copy of the Director's PIE decision or by a separate notice. You must send this notice to each client within three business days of receiving from the Department the notice provided for in § 40.399(b). (b) As part of the notice you send under paragraph (a) of this section, you must offer to transfer immediately all records pertaining to the employer and its employees to the employer or to any other service agent the employer designates. You must carry out this transfer as soon as the employer requests it. | ||||
| 49:49:1.0.1.1.30.18.43.23 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.405 May the Federal courts review PIE decisions? | DOT | The Director's decision is a final administrative action of the Department. Like all final administrative actions of Federal agencies, the Director's decision is subject to judicial review under the Administrative Procedure Act (5 U.S.C. 551 et. seq ). | |||||
| 49:49:1.0.1.1.30.18.43.24 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.407 May a service agent ask to have a PIE reduced or terminated? | DOT | (a) Yes, as a service agent concerning whom the Department has issued a PIE, you may request that the Director terminate a PIE or reduce its duration and/or scope. This process is limited to the issues of duration and scope. It is not an appeal or reconsideration of the decision to issue the PIE. (b) Your request must be in writing and supported with documentation. (c) You must wait at least nine months from the date on which the Director issued the PIE to make this request. (d) The initiating official who was the proponent of the PIE may provide information and arguments concerning your request to the Director. (e) If the Director verifies that the sources of your noncompliance have been eliminated and that all drug or alcohol testing-related services you would provide to DOT-regulated employers will be consistent with the requirements of this part, the Director may issue a notice terminating or reducing the PIE. | |||||
| 49:49:1.0.1.1.30.18.43.25 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.409 What does the issuance of a PIE mean to transportation employers? | DOT | (a) As an employer, you are deemed to have notice of the issuance of a PIE when it appears on the List mentioned in § 40.401(a) or the notice of the PIE appears in the Federal Register as provided in § 40.401(d). You should check this List to ensure that any service agents you are using or planning to use are not subject to a PIE. (b) As an employer who is using a service agent concerning whom a PIE is issued, you must stop using the services of the service agent no later than 90 days after the Department has published the decision in the Federal Register or posted it on its web site. You may apply to the ODAPC Director for an extension of 30 days if you demonstrate that you cannot find a substitute service agent within 90 days. (c) Except during the period provided in paragraph (b) of this section, you must not, as an employer, use the services of a service agent that are covered by a PIE that the Director has issued under this subpart. If you do so, you are in violation of the Department's regulations and subject to applicable DOT agency sanctions ( e.g., civil penalties, withholding of Federal financial assistance). (d) You also must not obtain drug or alcohol testing services through a contractor or affiliate of the service agent to whom the PIE applies. (e) This section's prohibition on using the services of a service agent concerning which the Director has issued a PIE applies to employers in all industries subject to DOT drug and alcohol testing regulations. (f) The issuance of a PIE does not result in the cancellation of drug or alcohol tests conducted using the service agent involved before the issuance of the Director's decision or up to 90 days following its publication in the Federal Register or posting on the Department's web site, unless otherwise specified in the Director's PIE decision or the Director grants an extension as provided in paragraph (b) of this section. | |||||
| 49:49:1.0.1.1.30.18.43.26 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.411 What is the role of the DOT Inspector General's office? | DOT | (a) Any person may bring concerns about waste, fraud, or abuse on the part of a service agent to the attention of the DOT Office of Inspector General. (b) In appropriate cases, the Office of Inspector General may pursue criminal or civil remedies against a service agent. (c) The Office of Inspector General may provide factual information to other DOT officials for use in a PIE proceeding. | |||||
| 49:49:1.0.1.1.30.18.43.27 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.413 How are notices sent to service agents? | DOT | (a) If you are a service agent, DOT sends notices to you, including correction notices, notices of proposed exclusion, decision notices, and other notices, in any of the ways mentioned in paragraph (b) or (c) of this section. (b) DOT may send a notice to you, your identified counsel, your agent for service of process, or any of your partners, officers, directors, owners, or joint venturers to the last known street address, fax number, or e-mail address. DOT deems the notice to have been received by you if sent to any of these persons. (c) DOT considers notices to be received by you— (1) When delivered, if DOT mails the notice to the last known street address, or five days after we send it if the letter is undeliverable; (2) When sent, if DOT sends the notice by fax or five days after we send it if the fax is undeliverable; or (3) When delivered, if DOT sends the notice by e-mail or five days after DOT sends it if the e-mail is undeliverable. | |||||
| 49:49:1.0.1.1.30.18.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.365 What is the Department's policy concerning starting a PIE proceeding? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52247, Nov. 13, 2017; 88 FR 27650, May 2, 2023] | (a) It is the Department's policy to start a PIE proceeding only in cases of serious, uncorrected noncompliance with the provisions of this part, affecting such matters as safety, the outcomes of test results, privacy and confidentiality, due process and fairness for employees, the honesty and integrity of the testing program, and cooperation with or provision of information to DOT agency representatives. (b) The following are examples of the kinds of serious noncompliance that, as a matter of policy, the Department views as appropriate grounds for starting a PIE proceeding. These examples are not intended to be an exhaustive or exclusive list of the grounds for starting a PIE proceeding. We intend them to illustrate the level of seriousness that the Department believes supports starting a PIE proceeding. The examples follow: (1) For an MRO, verifying tests positive without interviewing the employees as required by this part or providing MRO services without meeting the qualifications for an MRO required by this part; (2) For a laboratory, refusing to provide information to the Department, an employer, or an employee as required by this part; failing or refusing to conduct a validity testing program when required by this part; or a pattern or practice of testing errors that result in the cancellation of tests. (As a general matter of policy, the Department does not intend to initiate a PIE proceeding concerning a laboratory with respect to matters on which HHS initiates certification actions under its laboratory guidelines.); (3) For a collector, a pattern or practice of directly observing collections when doing so is unauthorized, or failing or refusing to directly observe collections when doing so is mandatory; (4) For collectors, BATs, or STTs, a pattern or practice of using forms, testing equipment, or collection kits that do not meet the standards in this part; (5) For a collector, BAT, or STT, a pattern or practice of “fatal flaws” or other significant uncorrected errors in the collection process; (6… | ||||
| 49:49:1.0.1.1.30.18.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.367 Who initiates a PIE proceeding? | DOT | The following DOT officials may initiate a PIE proceeding: (a) The drug and alcohol program manager of a DOT agency; (b) An official of ODAPC, other than the Director; or (c) The designee of any of these officials. | |||||
| 49:49:1.0.1.1.30.18.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.369 What is the discretion of an initiating official in starting a PIE proceeding? | DOT | (a) Initiating officials have broad discretion in deciding whether to start a PIE proceeding. (b) In exercising this discretion, the initiating official must consider the Department's policy regarding the seriousness of the service agent's conduct (see § 40.365) and all information he or she has obtained to this point concerning the facts of the case. The initiating official may also consider the availability of the resources needed to pursue a PIE proceeding. (c) A decision not to initiate a PIE proceeding does not necessarily mean that the Department regards a service agent as being in compliance or that the Department may not use other applicable remedies in a situation of noncompliance. | |||||
| 49:49:1.0.1.1.30.18.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.371 On what information does an initiating official rely in deciding whether to start a PIE proceeding? | DOT | (a) An initiating official may rely on credible information from any source as the basis for starting a PIE proceeding. (b) Before sending a correction notice (see § 40.373), the initiating official informally contacts the service agent to determine if there is any information that may affect the initiating official's determination about whether it is necessary to send a correction notice. The initiating official may take any information resulting from this contact into account in determining whether to proceed under this subpart. | |||||
| 49:49:1.0.1.1.30.18.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.373 Before starting a PIE proceeding, does the initiating official give the service agent an opportunity to correct problems? | DOT | (a) If you are a service agent, the initiating official must send you a correction notice before starting a PIE proceeding. (b) The correction notice identifies the specific areas in which you must come into compliance in order to avoid being subject to a PIE proceeding. (c) If you make and document changes needed to come into compliance in the areas listed in the correction notice to the satisfaction of the initiating official within 60 days of the date you receive the notice, the initiating official does not start a PIE proceeding. The initiating official may conduct appropriate fact finding to verify that you have made and maintained satisfactory corrections. When he or she is satisfied that you are in compliance, the initiating official sends you a notice that the matter is concluded. | |||||
| 49:49:1.0.1.1.30.18.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.375 How does the initiating official start a PIE proceeding? | DOT | (a) As a service agent, if your compliance matter is not correctable (see § 40.373(a)), or if have not resolved compliance matters as provided in § 40.373(c), the initiating official starts a PIE proceeding by sending you a notice of proposed exclusion (NOPE). The NOPE contains the initiating official's recommendations concerning the issuance of a PIE, but it is not a decision by the Department to issue a PIE. (b) The NOPE includes the following information: (1) A statement that the initiating official is recommending that the Department issue a PIE concerning you; (2) The factual basis for the initiating official's belief that you are not providing drug and/or alcohol testing services to DOT-regulated employers consistent with the requirements of this part or are in serious noncompliance with a DOT agency drug and alcohol regulation; (3) The factual basis for the initiating official's belief that your noncompliance has not been or cannot be corrected; (4) The initiating official's recommendation for the scope of the PIE; (5) The initiating official's recommendation for the duration of the PIE; and (6) A statement that you may contest the issuance of the proposed PIE, as provided in § 40.379. (c) The initiating official sends a copy of the NOPE to the ODAPC Director at the same time he or she sends the NOPE to you. | |||||
| 49:49:1.0.1.1.30.18.43.9 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | R | Subpart R—Public Interest Exclusions | § 40.377 Who decides whether to issue a PIE? | DOT | (a) The ODAPC Director, or his or her designee, decides whether to issue a PIE. If a designee is acting as the decisionmaker, all references in this subpart to the Director refer to the designee. (b) To ensure his or her impartiality, the Director plays no role in the initiating official's determination about whether to start a PIE proceeding. (c) There is a “firewall” between the initiating official and the Director. This means that the initiating official and the Director are prohibited from having any discussion, contact, or exchange of information with one another about the matter, except for documents and discussions that are part of the record of the proceeding. | |||||
| 49:49:1.0.1.1.30.2.43.1 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.11 What are the general responsibilities of employers under this regulation? | DOT | (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. | |||||
| 49:49:1.0.1.1.30.2.43.10 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.26 What form must an employer use to report Management Information System (MIS) data to a DOT agency? | DOT | [84 FR 16773, Apr. 23, 2019, as amended at 88 FR 27638, May 2, 2023] | As an employer, when you are required to report MIS data to a DOT agency, you must use the U.S. Department of Transportation Drug and Alcohol Testing MIS Data Collection Form to report that data. You must use the form and instructions referenced at appendix J to part 40. You must submit the MIS report in accordance with rule requirements ( e.g., dates for submission; selection of companies required to submit, and method of reporting) established by the DOT agency regulating your operation. | ||||
| 49:49:1.0.1.1.30.2.43.11 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.27 May an employer require an employee to sign a consent or release in connection with the DOT drug and alcohol testing program? | DOT | [66 FR 41950, Aug. 9, 2001] | 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). | ||||
| 49:49:1.0.1.1.30.2.43.2 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.13 How do DOT drug and alcohol tests relate to non-DOT tests? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023] | (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. When conducting a urine DOT drug test, you must discard any excess urine left over from a DOT test and collect a separate urine 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 specimens other than those tests specifically authorized by this part or DOT agency regulations. For example, you must not test a DOT specimen for additional drugs. In addition, a laboratory is prohibited from making a DOT specimen available for a DNA test or other types of specimen identity testing. (d) When a DOT urine drug test collection is conducted as part of a physical examination required by DOT agency regulations, it is permissible to conduct medical tests related to this physical examination ( e.g., for glucose) on any specimen remaining in the collection container after the DOT portion has been sealed into the specimen bottles. (e) A non-DOT drug or alcohol test administered, as part of a physical examination, is not a DOT drug or alcohol test for purposes of this part and/or related DOT agency drug and alcohol testing rules, if that test was performed to determine if an employee is medically qualified for a license or certificate. Consequently, the results of such a test do not have consequences under this part. (f) 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. (g) 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 … | ||||
| 49:49:1.0.1.1.30.2.43.3 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.14 What collection information must employers provide to collectors? | DOT | [75 FR 59107, Sept. 27, 2010, as amended at 88 FR 27637, May 2, 2023; 89 FR 51983, June 21, 2024] | 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 specimen collection for you: (a) Full name of the employee being tested. (b) SSN or Employee ID No. (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 § 40.36. (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). (k) Specimen type to be collected ( i.e., oral fluid or urine). | ||||
| 49:49:1.0.1.1.30.2.43.4 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.15 May an employer use a service agent to meet DOT drug and alcohol testing requirements? | DOT | (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. | |||||
| 49:49:1.0.1.1.30.2.43.5 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.17 Is an employer responsible for obtaining information from its service agents? | DOT | 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. | |||||
| 49:49:1.0.1.1.30.2.43.6 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.19 [Reserved] | DOT | ||||||
| 49:49:1.0.1.1.30.2.43.7 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.21 May an employer stand down an employee before the MRO has completed the verification process? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023] | (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 st… | ||||
| 49:49:1.0.1.1.30.2.43.8 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 40.23 What actions do employers take after receiving verified test results? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27637, May 2, 2023] | (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 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 (either an oral fluid specimen or a urine specimen under dir… | ||||
| 49:49:1.0.1.1.30.2.43.9 | 49 | Transportation | A | 40 | PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS | B | Subpart B—Employer Responsibilities | § 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? | DOT | [65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023] | (a)(1) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraphs (b) through (j) of this section. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time ( i.e., a new hire, an employee transferring into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions. (2) If you are an employer regulated by FMCSA, you must comply with the requirements of this section by using the FMCSA's Drug and Alcohol Clearinghouse in accordance with 49 CFR 382.71(a). In addition, you must continue to comply with the requirements of this § 40.25 when checking an employee's testing history with employers regulated by a DOT operating administration other than FMCSA. (3) If you are an employer regulated by FMCSA, with a prospective employee subject to drug and alcohol testing with a DOT agency other than FMCSA, you must continue to request the information about the employee listed in paragraphs (b) through (j) of this section. For example, if you are an employer regulated by both FMCSA and PHMSA, and you are hiring an employee to perform functions regulated by both DOT agencies, then you must query FMCSA's Clearinghouse to satisfy FMCSA's requirements and you must request the information listed in paragraphs (b) through (j) of this section to satisfy PHMSA's requirements. (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 t… |
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