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Subpart N - Problems in Alcohol Testing
§40.261 What is a refusal to take an alcohol test,
and what are the consequences?
(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 C/TPA (see
(2) Fail to remain at the testing site until the testing process
is complete; Provided, that an employee who leaves the testing
site before the testing process commences (see §40.243(a))
for a pre-employment test is not deemed to have refused a test;
(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 the 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
(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 Step 2 of the ATF (see §§40.241(g)
and 40.251(d)); or
(7) Fail to cooperate with any part of the testing process.
(b) As an employee, if you refuse to take an alcohol test, you
incur the same consequences specified under DOT agency regulations
for a violation of those DOT agency regulations.
(c) As a BAT or an STT, or as the physician evaluating a “shy
lung” situation, when an employee refuses to test as provided
in paragraph (a) of this section, you must terminate the portion
of the testing process in which you are involved, document the
refusal on the ATF (or in a separate document which you cause
to be attached to the form), immediately notify the DER by any
means (e.g., telephone or secure fax machine) that ensures the
refusal notification is immediately received. You must make this
notification directly to the DER (not using a C/TPA as an intermediary).
(d) As an employee, when you refuse to take a non-DOT test or
to sign a non-DOT form, you have not refused to take a DOT test.
There are no consequences under DOT agency regulations for such
§40.263 What happens when an employee is unable
to provide a sufficient amount of saliva for an alcohol screening
(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
(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
(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
§40.265 What happens when an employee is unable
to provide a sufficient amount of breath for an alcohol test?
(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 statement
of his or her conclusions; and
(iv) That the physician, in his or her reasonable medical judgment,
must base those conclusions on one of the following determinations:
(A) A medical condition has, or with a high degree of probability
could have, precluded the employee from providing a sufficient
amount of breath. The physician must not include in the signed
statement detailed information on the employee's medical condition.
In this case, the test is cancelled.
(B) There is not an adequate basis for determining that a medical
condition has, or with a high degree of probability could have,
precluded the employee from providing a sufficient amount of breath.
This constitutes a refusal to test.
(C) For purposes of paragraphs (c)(1)(iv)(A) and (B) of this section,
a medical condition includes an ascertainable physiological condition
(e.g., a respiratory system dysfunction) or a medically documented
pre-existing psychological disorder, but does not include unsupported
assertions of “situational anxiety” or hyperventilation.
(2) As the physician making the evaluation, after making your
determination, you must provide a written statement of your conclusions
and the basis for them to the DER directly (and not through a
C/TPA acting as an intermediary). You must not include in this
statement detailed information on the employee's medical condition
beyond what is necessary to explain your conclusion.
(3) Upon receipt of the report from the examining physician, as
the DER you must immediately inform the employee and take appropriate
action based upon your DOT agency regulations.
§40.267 What problems always cause an alcohol test
to be cancelled?
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
(a) In the case of a screening test conducted on a saliva ASD:
(1) The STT reads the result either sooner than or later than
the time allotted by the manufacturer (see §40.245(h));
(2) The device does not activate (see §40.245(g)); or
(3) The device is used for a test after the expiration date printed
on its package (see §40.245(a)).
(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)
§40.269 What problems cause an alcohol test to be
cancelled unless they are corrected?
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)
(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)(2)).
(c) The BAT or STT uses a non-DOT form for the test (see §40.225(a)).
§40.271 How are alcohol testing problems corrected?
(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
(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
(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 that the employee failed or refused to sign
the certification after the result was obtained, and that your
signed statement is true and accurate.
(2) If the problem is the use of a non-DOT form, you must, as
the person responsible for the use of the incorrect form, certify
in writing that the incorrect form contains all the information
needed for a valid DOT alcohol test. You must also provide a signed
statement that the incorrect form was used inadvertently or as
the only means of conducting a test, in circumstances beyond your
control, and the steps you have taken to prevent future use of
non-DOT forms for DOT tests. You must supply this information
on the same business day on which you are notified of the problem,
transmitting it by fax or courier.
(c) If you cannot correct the problem, you must cancel the test.
§40.273 What is the effect of a cancelled alcohol
(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
§40.275 What is the effect of procedural problems
that are not sufficient to cancel an alcohol test?
(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.
§40.277 Are alcohol tests other than saliva or breath
permitted under these regulations?
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.
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