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Subpart Q - Roles and Responsibilities of Service Agents
§40.341 Must service agents comply with DOT drug
and alcohol testing requirements?
(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.
§40.343 What tasks may a service agent perform for
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.
§40.345 In what circumstances may a C/TPA act as
an intermediary in the transmission of drug and alcohol testing
information to employers?
(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 F 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
§40.347 What functions may C/TPAs perform with respect
to administering testing?
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,
(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
§40.349 What records may a service agent receive
(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
(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 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.
§40.351 What confidentiality requirements apply
to service agents?
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.
§40.353 What principles govern the interaction between
MROs and other service agents?
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
(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.
§40.355 What limitations apply to the activities
of service agents?
As a service agent, you are subject to the following limitations
concerning your activities in the DOT drug and alcohol testing
(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
(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 employee based upon reasonable suspicion,
post-accident, return-to-duty, and follow-up determination criteria.
These are duties the actual employer cannot delegate to a C/TPA.
You may, however, provide advice and information to employers
regarding these testing issues and how the employer should schedule
(h) As an exception to paragraph (g) of this section, you may
make decisions to test an employee based upon reasonable suspicion,
post-accident, return-to-duty, and follow-up determination criteria
with respect to an owner-operator or other self-employed individual.
(i) Except as provided in paragraph (j) of this section, you must
not make a determination that an employee has refused a drug or
alcohol test. This is a non-delegable duty of the actual employer.
You may, however, provide advice and information to employers
regarding refusal-to-test issues.
(j) As an exception to paragraph (i) of this section, you may
make a determination that an employee has refused a drug or alcohol
(1) You schedule a required test for an owner-operator or other
self-employed individual, and the individual fails to appear for
the test without a legitimate reason; or
(2) As an MRO, you determine that an individual has refused to
test on the basis of adulteration or substitution.
(k) You must not act as a DER. For example, while you may be responsible
for transmitting information to the employer about test results,
you must not act on behalf of the employer in actions to remove
employees from safety-sensitive duties.
(l) In transmitting documents to laboratories, you must ensure
that you send to the laboratory that conducts testing only the
laboratory copy of the CCF. You must not transmit other copies
of the CCF or any ATFs to the laboratory.
(m) You must not impose conditions or requirements on employers
that DOT regulations do not authorize. For example, as a C/TPA
serving employers in the pipeline or motor carrier industry, you
must not require employers to have provisions in their DOT plans
that RSPA or FMCSA regulations do not require.
(n) You must not intentionally delay the transmission of drug
or alcohol testing-related documents concerning actions you have
performed, because of a payment dispute or other reasons.
Example 1 to Paragraph (n): A laboratory that has tested a specimen
must not delay transmitting the documentation of the test result
to an MRO because of a billing or payment dispute with the MRO
or a C/TPA.
Example 2 to Paragraph (n): An MRO or SAP who has interviewed
an employee must not delay sending a verified test result or SAP
report to the employer because of such a dispute with the employer
Example 3 to Paragraph (n): A collector who has performed a urine
specimen collection must not delay sending the drug specimen and
CCF to the laboratory because of a payment or other dispute with
the laboratory or a C/TPA.
Example 4 to Paragraph (n): A BAT who has conducted an alcohol
test must not delay sending test result information to an employer
or C/TPA because of a payment or other dispute with the employer
(o) While you must follow the DOT agency regulations, the actual
employer remains accountable to DOT for compliance, and your failure
to implement any aspect of the program as required in this part
and other applicable DOT agency regulations makes the employer
subject to enforcement action by the Department.
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