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Subpart B - Employer Responsibilities
§40.11 What are the general responsibilities of
employers under this regulation?
(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.
§40.13 How do DOT drug and alcohol tests relate
to non-DOT tests?
(a) DOT tests must be completely separate from non-DOT tests in
(b) DOT tests must take priority and must be conducted and completed
before a non-DOT test is begun. For example, you must discard
any excess urine left over from a DOT test and collect a separate
void for the subsequent non-DOT test.
(c) Except as provided in paragraph (d) of this section, you must
not perform any tests on DOT urine or breath specimens other than
those specifically authorized by this part or DOT agency regulations.
For example, you may not test a DOT urine specimen for additional
drugs, and a laboratory is prohibited from making a DOT urine
specimen available for a DNA test or other types of specimen identity
(d) The single exception to paragraph (c) of this section is when
a DOT drug test collection is conducted as part of a physical
examination required by DOT agency regulations. It is permissible
to conduct required medical tests related to this physical examination
(e.g., for glucose) on any urine remaining in the collection container
after the drug test urine specimens have been sealed into the
(e) No one is permitted to change or disregard the results of
DOT tests based on the results of non-DOT tests. For example,
as an employer you must not disregard a verified positive DOT
drug test result because the employee presents a negative test
result from a blood or urine specimen collected by the employee's
physician or a DNA test result purporting to question the identity
of the DOT specimen.
(f) As an employer, you must not use the CCF or the ATF in your
non-DOT drug and alcohol testing programs. This prohibition includes
the use of the DOT forms with references to DOT programs and agencies
crossed out. You also must always use the CCF and ATF for all
your DOT-mandated drug and alcohol tests.
§40.15 May an employer use a service agent to meet
DOT drug and alcohol testing requirements?
(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.
§40.17 Is an employer responsible for obtaining
information from its service agents?
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
§40.21 May an employer stand down an employee before the
MRO has completed the verification process?
(a) As an employer, you are prohibited from standing employees
down, except consistent with a waiver a DOT agency grants under
(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
(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
(ii) Data showing the number of confirmed laboratory positive,
adulterated, and substituted test results for your employees over
the two calendar years preceding your waiver request, and the
number and percentage of those test results that were verified
positive, adulterated, or substituted by the MRO;
(iii) Information about the work situation of the employees subject
to stand-down, including a description of the size and organization
of the unit(s) in which the employees work, the process through
which employees will be informed of the stand-down, whether there
is an in-house MRO, and whether your organization has a medical
disqualification or stand-down policy for employees in situations
other than drug and alcohol testing; and
(iv) A statement of which DOT agencies regulate your employees.
(2) Your proposed written company policy concerning stand-down,
which must include the following elements:
(i) Your assurance that you will distribute copies of your written
policy to all employees that it covers;
(ii) Your means of ensuring that no information about the confirmed
positive, adulterated, or substituted test result or the reason
for the employee's temporary removal from performance of safety-sensitive
functions becomes available, directly or indirectly, to anyone
in your organization (or subsequently to another employer) other
than the employee, the MRO and the DER;
(iii) Your means of ensuring that all covered employees in a particular
job category in your organization are treated the same way with
respect to stand-down;
(iv) Your means of ensuring that a covered employee will be subject
to stand-down only with respect to the actual performance of safety-sensitive
(v) Your means of ensuring that you will not take any action adversely
affecting the employee’s pay and benefits pending the completion
of the MRO’s verification process. This includes continuing
to pay the employee during the period of the stand-down in the
same way you would have paid him or her had he or she not been
(vi) Your means of ensuring that the verification process will
commence no later than the time an employee is temporarily removed
from the performance of safety-sensitive functions and that the
period of stand-down for any employee will not exceed five days,
unless you are informed in writing by the MRO that a longer period
is needed to complete the verification process; and
(vii) Your means of ensuring that, in the event that the MRO verifies
the test negative or cancels it --
(A) You return the employee immediately to the performance of
(B) The employee suffers no adverse personnel or financial consequences
as a result; and
(C) You maintain no individually identifiable record that the
employee had a confirmed laboratory positive, adulterated, or
substituted test result (i.e., you maintain a record of the test
only as a negative or cancelled test).
(d) The Administrator of the concerned DOT agency, or his or her
designee, may grant a waiver request only if he or she determines
that, in the context of your organization, there is a high probability
that the procedures you propose will effectively enhance safety
and protect the interests of employees in fairness and confidentiality.
(1) The Administrator, or his or her designee, may impose any
conditions he or she deems appropriate on the grant of a waiver.
(2) The Administrator, or his or her designee, may immediately
suspend or revoke the waiver if he or she determines that you
have failed to protect effectively the interests of employees
in fairness and confidentiality, that you have failed to comply
with the requirements of this section, or that you have failed
to comply with any other conditions the DOT agency has attached
to the waiver.
(e) You must not stand employees down in the absence of a waiver,
or inconsistent with the terms of your waiver. If you do, you
are in violation of this part and DOT agency drug testing regulations,
and you are subject to enforcement action by the DOT agency just
as you are for other violations of this part and DOT agency rules.
§40.23 What actions do employers take after receiving
verified test results?
(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
(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 – 0.39, 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 specimen was invalid and that a second
collection must take place under direct observation –
(1) You must immediately direct the employee to provide a new
specimen under direct observation.
(2) You must not attach consequences to the finding that the test
was invalid other than collecting a new specimen under direct
(3) You must not give any advance notice of this test requirement
to the employee.
(4) You must instruct the collector to note on the CCF the same
reason (e.g. random test, post-accident test) as for the original
(g) As an employer who receives a cancelled test result when a
negative result is required (e.g., pre-employment, return-to-duty,
or follow-up test), you must direct the employee to provide another
(h) As an employer, you may also be required to take additional
actions required by DOT agency regulations (e.g., FAA rules require
some positive drug tests to be reported to the Federal Air Surgeon).
(i) As an employer, you must not alter a drug or alcohol test
result transmitted to you by an MRO, BAT, or C/TPA.
§40.25 Must an employer check on the drug and alcohol
testing record of employees it is intending to use to perform
(a) Yes, as an employer, you must, after obtaining an employee's
written consent, request the information about the employee listed
in paragraph (b) of this section. This requirement applies only
to employees seeking to begin performing safety-sensitive duties
for you for the first time (i.e., a new hire, an employee transfers
into a safety-sensitive position). If the employee refuses to
provide this written consent, you must not permit the employee
to perform safety-sensitive functions.
(b) You must request the information listed in this paragraph
(b) from DOT-regulated employers who have employed the employee
during any period during the two years before the date of the
employee's application or transfer:
(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(2) Verified positive drug tests;
(3) Refusals to be tested (including verified adulterated or substituted
drug test results);
(4) Other violations of DOT agency drug and alcohol testing regulations;
(5) With respect to any employee who violated a DOT drug and alcohol
regulation, documentation of the employee's successful completion
of DOT return-to-duty requirements (including follow-up tests).
If the previous employer does not have information about the return-do-duty
process (e.g., an employer who did not hire an employee who tested
positive on a pre-employment test), you must seek to obtain this
information from the employee.
(c) The information obtained from a previous employer includes
any drug or alcohol test information obtained from previous employers
under this section or other applicable DOT agency regulations.
(d) If feasible, you must obtain and review this information before
the employee first performs safety-sensitive functions. If this
is not feasible, you must obtain and review the information as
soon as possible. However, you must not permit the employee to
perform safety-sensitive functions after 30 days from the date
on which the employee first performed safety-sensitive functions,
unless you have obtained or made and documented a good faith effort
to obtain this information.
(e) If you obtain information that the employee has violated a
DOT agency drug and alcohol regulation, you must not use the employee
to perform safety-sensitive functions unless you also obtain information
that the employee has subsequently complied with the return-to-duty
requirements of Subpart O of this part and DOT agency drug and
(f) You must provide to each of the employers from whom you request
information under paragraph (b) of this section written consent
for the release of the information cited in paragraph (a) of this
(g) The release of information under this section must be in any
written form (e.g., fax, e-mail, letter) that ensures confidentiality.
As the previous employer, you must maintain a written record of
the information released, including the date, the party to whom
it was released, and a summary of the information provided.
(h) If you are an employer from whom information is requested
under paragraph (b) of this section, you must, after reviewing
the employee's specific, written consent, immediately release
the requested information to the employer making the inquiry.
(i) As the employer requesting the information required under
this section, you must maintain a written, confidential record
of the information you obtain or of the good faith efforts you
made to obtain the information. You must retain this information
for three years from the date of the employee's first performance
of safety-sensitive duties for you.
(j) As the employer, you must also ask the employee whether he
or she has tested positive, or refused to test, on any pre-employment
drug or alcohol test administered by an employer to which the
employee applied for, but did not obtain, safety-sensitive transportation
work covered by DOT agency drug and alcohol testing rules during
the past two years. If the employee admits that he or she had
a positive test or a refusal to test, you must not use the employee
to perform safety-sensitive functions for you, until and unless
the employee documents successful completion of the return-to-duty
process (see paragraphs (b)(5) and (e) of this section).
§40.27 May an employer require an employee to sign
a consent or release in connection with the DOT drug and alcohol
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).
§40.29 Where is other information on employer responsibilities
found in this regulation?
You can find other information on the responsibilities of employers
in the following sections of this part:
§40.3 – definition.
§40.35 - information about DERs that employers must provide
§40.45 – modifying CCFs, use of foreign-language CCFs.
§40.47 - use of non-Federal forms for DOT tests or Federal
CCFs for non-DOT tests.
§40.67 - requirements for direct observation.
§§40.103 - 40.105 - blind specimen requirements.
§40. 173 - responsibility to ensure test of split specimen.
§40.193 - action in "shy bladder" situations.
§40.197 - actions following report of a dilute specimen.
§40.207 - actions following a report of a cancelled drug
§40.209 - actions following and consequences of non-fatal
flaws in drug tests.
§40.215 - information about DERs that employers must provide
BATs and STTs.
§40.225 - modifying ATFs; use of foreign-language ATFs.
§40.227 - use of non-DOT forms for DOT tests or DOT ATFs
for non-DOT tests.
§40.235 (c) and (d) - responsibility to follow instructions
§40.255 (b) - receipt and storage of alcohol test information.
§40.265 (c) - (e) - actions in "shy lung" situations.
§40.267 - cancellation of alcohol tests.
§40.271 - actions in "correctable flaw" situations
in alcohol tests.
§40.273 - actions following cancelled tests in alcohol tests.
§40.275 - actions in "non-fatal flaw" situations
in alcohol tests.
§§40.287 - 40.289 - responsibilities concerning SAP
§§40.295 - 40.297 prohibition on seeking second SAP
evaluation or changing SAP recommendation.
§40.303 - responsibilities concerning aftercare recommendations.
§40.305 - responsibilities concerning return-to-duty decision.
§40.309 - responsibilities concerning follow-up tests.
§40.321 - general confidentiality requirement.
§40.323 - release of confidential information in litigation.
§40.331 - other circumstances for the release of confidential
§40.333 - record retention requirements.
§40.345 - choice of who reports drug testing information
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