Pre-Employment Alcohol Testing – QUESTION: Rev. 09/01.
Can an employer wishing to conduct pre-employment alcohol testing, do so?
- A DOT-regulated employer (except under USCG and RSPA rules) wishing to conduct pre-employment alcohol testing under DOT authority may do so if certain conditions are met.
- The testing must be accomplished for all applicants (i.e., the employer cannot select for testing some applicants and not others) and the testing must be conducted as a post-offer requirement (i.e., the employer needs to inform the applicant that he or she has the job if he or she passes a DOT alcohol test).
- In addition, the testing and its consequences must comply with requirements of Part 40.
§40.3 – QUESTION: Rev. 09/01.
Can the employer himself or herself act as a Designated Employer Representative (DER), as opposed to appointing another employee to play this role?
- The employer (e.g., the owner of a small business) may act personally as the DER
- The employer may also appoint an employee or employees to play this role.
- The DER must exercise his or her authority to remove an employee from safety sensitive functions either directly or by causing the employee to be removed from performing these functions (e.g., by having the employee’s supervisor effect the actual removal).
- The employer may not delegate the DER role to a service agent. Only the employer or an actual employee of the employer may perform this function.
- The Department will not authorize a “DER-for-hire” concept (e.g., a person under contract by several companies to serve as their DER), either.
§40.3; §40.15(d) QUESTION: Rev. 09/01.
If a C/TPA is hired as an “independent safety consultant” that executes all aspects of the employer’s safety and drug and alcohol testing programs, can the C/TPA act as a DER?
- Service agents are prohibited from acting as DERs under any circumstances.
- The fact that an organization that is called an “independent safety consultant” acts as a consultant to an employer for purposes of executing a drug and alcohol testing or safety program does not make it any less a service agent. It is still prohibited from acting as a DER.
§40.21 QUESTION: Rev. 09/01.
Can union hiring halls, driver-leasing companies, and other entities have a stand-down policy, or is the ability to obtain a waiver for this purpose limited to actual employers?
- The rule permits “employers” to apply for a stand-down waiver. It does not permit any other entity to do so.
- Only entities that are viewed as “employers” for purposes of DOT agency drug and alcohol testing regulations can apply for stand-down waivers. If a DOT agency rule provides that hiring halls, leasing agencies, etc. are treated as employers, such organizations could apply for a stand-down waiver.
§40.21 QUESTION: Rev. 09/01.
Does an employer need a stand-down waiver in order to implement a policy that requires employees to cease performing safety-sensitive functions following a reasonable suspicion or post-accident test?
- §40.21 requires an employer to obtain a waiver to do one very specific thing: remove employees from performance of safety-sensitive functions on the basis of the report of confirmed laboratory test results that have not yet been verified by the MRO.
- An employer does not need a §40.21 waiver to take other actions involving the performance of safety-sensitive functions.
- For example, an employer could (if it is not prohibited by DOT agency regulations and it is consistent with applicable labor-management agreements) have a company policy saying that, on the basis of an event (e.g., the occurrence of an accident that requires a DOT post-accident test, the finding of reasonable suspicion that leads to a DOT reasonable suspicion test), the employee would immediately stop performing safety-sensitive functions. Such a policy, which is not triggered by the MRO’s receipt of a confirmed laboratory test result, would not require a §40.21 waiver.
- It would not be appropriate for an employer to remove employees from performance of safety-sensitive functions pending the result of a random or follow-up test, since there is no triggering event to which the action could rationally be tied.
§40.25 QUESTION: Rev. 06/04.
Will FMCSA-and FAA-regulated employers complying with the drug and alcohol information records check requirements contained in the Federal Motor Carrier Safety Administration (FMCSA) regulation 49 CFR Part 391 and the Federal Aviation Administration (FAA) Pilot Record Improvement Act be considered compliant with 40.25?
- Yes. Employers who are required by and who comply with the FMCSA’s three-year requirement for obtaining and providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement contained in 40.25.
- Likewise, employers who are required by and who comply with the FAA’s five-year requirement for obtaining and providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement contained in 40.25.
- These employers do not need to seek separately the 40.25 information if the employer adheres to the FMCSA and FAA regulations, as appropriate, for obtaining an employee’s prior drug and alcohol testing information.
§40.25 QUESTION: Rev. 01/02.
If an applicant admits to testing positive on or refusing to take a pre-employment test within the past two years, must the applicant be held out of safety-sensitive duties if he or she did not complete the return-to-duty process (i.e., the SAP process)?
- If the applicant admits that he or she had a positive or a refusal to test result on a pre-employment test, the employer is not permitted to use the applicant to perform safety-sensitive duties until and unless the applicant documents successful completion of the return-to-duty process.
- This Part 40 requirement applies whether or not the pre-employment positive or refusal occurred before, on, or after August 1, 2001.
- Should no proof exist that the return-to-duty process was successfully complied with by the applicant, a current return-to-duty process must occur before the individual can again perform safety-sensitive functions.
§40.25 QUESTION: Rev. 09/01.
When an employer is inquiring about an applicant’s previous DOT drug and alcohol test results, is the employer required to send the inquiry via certified mail?
- No. Certified mail is not required.
- The employer can make this inquiry through a variety of means, including mail (certified or not), fax, telephone, or email.
- However, the employer must provide the former employer the signed release or a faxed or scanned copy of the employee’s signed release.
- The former employer must respond via a written response (e.g., fax, letter, email) that ensures confidentiality.
- The employer should document an attempt or attempts to contact and contacts with previous employers, no matter how they were made, so that it can show a good faith effort to obtain the required information.
§40.25 QUESTION: Rev. 09/01.
When a previous employer receives an inquiry from a new employer for drug and alcohol testing information, does the previous employer provide information it may have received from other employers in the past?
- As an employer, when you receive an inquiry about a former employee, you must provide all the information in your possession concerning the employee’s DOT drug and alcohol tests that occurred in the two years preceding the inquiry.
- This includes information you received about an employee from a former employer (e.g., in response to the Federal Motor Carrier Safety Administration’s pre-employment inquiry requirement).
- It is not a violation of Part 40 or DOT agency rules if you provide, in addition, information about the employee’s DOT drug and alcohol tests obtained from former employers that dates back more than two years ago.
- If you are an employer regulated by the FAA, this does not impact your requirements under the Pilot Record Act.
§40.33; 40.121; 40.213; 40.281 QUESTION: Rev. 01/02
Because Part 40 requires collectors, MROs, BATs and STTs, and SAPs to maintain their own training records, can employers or training entities refuse to provide these service agents their training records?
- No. Employers and trainers who provide training for these service agents must not withhold training documentation from them when they have successfully completed the training requirements.
- If a collector, BAT, STT, MRO, or SAP is not in possession of training documentation, he or she is in violation of Part 40.
- Therefore, Part 40 does not permit the withholding of such documentation from these service agents.
§40.33 QUESTION: Rev. 01/02
Is error correction training required if a drug test is cancelled due to a specimen having an insufficient amount of urine?
- No. Employers and trainers who provide training for these service agents must not withhold training documentation from them when they have successfully completed the training requirements.
- If a collector, BAT, STT, MRO, or SAP is not in possession of training documentation, he or she is in violation of Part 40.
- Therefore, Part 40 does not permit the withholding of such documentation from these service agents.
§40.33 QUESTION: Rev. 09/01
If a collector makes a mistake resulting in a cancellation of a test before he or she has obtained qualification training (e.g., in the period before January 31, 2003), does he or she have to obtain error correction training under §40.33(f)?
- Yes. If a collector makes a mistake that causes a test to be cancelled, the collector must undergo error correction training (even if the collector has yet to undergo qualification training). There are no exceptions to this requirement.
§40.33 QUESTION: Rev. 09/01
A collector who is notified that he or she made a mistake has 30 days in which to obtain error correction training. Can the collector continue to perform DOT collections during this 30-day period?
- Yes. A collector may continue to perform DOT collections during this period.
- After 30 days have elapsed following the notification to the collector of the need to obtain error correction training, the collector is no longer qualified to conduct DOT collections until and unless he or she has successfully completed error correction training.
- As provided in §40.209(b)(3), collection of a specimen by a collector who has not met training requirements does not result in the cancellation of the test, assuming the collection is otherwise proper. However, use of an unqualified collector can result in enforcement action.
§40.33 QUESTION: Rev. 09/01
Who is responsible for notifying a collector that error correction training is needed?
- The MRO, in canceling a drug test, will determine if the collector is at fault.
- When the MRO reports the cancelled test to the employer, the MRO will note the reason for the cancellation and that, if appropriate, it was the result of collector error.
- The employer or service agent (e.g., MRO, C/TPA) designated by the employer is responsible for notifying the collection site of the error and the retraining requirement; and for ensuring that the training takes place.
§40.33 QUESTION: Rev. 09/01
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- These individuals are responsible for maintaining documentation that they currently meet all training requirements (see, for example, §40.33(g)).
- However, they are not required to keep this documentation on their person.
- They must be able to produce this documentation within a short, reasonable time of a request by a DOT representative or an employer.
- Nothing precludes an organization (e.g., a collection site) from also maintaining a file of the training records of its personnel, if it wishes to do so.
§40.33 QUESTION: Rev. 09/01
What does the rule require with respect to the qualifications of persons who train collectors?
- Part 40 does not specify any set of specific qualifications for persons who train collectors.
- The training must cover the items required by Part 40.
§40.33 QUESTION: Rev. 09/01
Does a person who monitors proficiency demonstrations as a part of collector qualification training have to be a qualified collector?
- Yes. It is very important for persons who monitor mock collections to have a thorough “book” and practical knowledge of relevant DOT rules and procedures. It is also very important that, before determining whether trainees have successfully completed a proficiency demonstration, the monitor have experienced and successfully completed the same training that collectors have to undergo.
- Consequently, mock collection monitors have to meet collector qualification training requirements. In addition, the monitor must meet any one of three other requirements:
- * The monitor can be a qualified collector who has regularly conducted DOT drug testing collections for a least a year before serving as a monitor; or
- * The monitor can be a qualified collector who has had a “train-the-trainer” course. Such a course could include the mandatory elements of collector qualification training as well as instruction on how to conduct training effectively; or
- * The monitor can be a qualified collector who has conducted collector training under Part 40 for at least a year before serving as a monitor.
- Monitors in the second and third categories do not need to practice actively as collectors, so long as they have met collector qualification requirements.
- Individuals acting as collectors prior to August 1, 2001, have until January 31, 2003, to meet qualification training requirements. In the meantime, such collectors can serve as monitors even though they may not have met the qualification and mock collection requirements (so long as they meet any one of the three other requirements).
§40.35; 40.45; 40.345 QUESTION: Rev. 09/01
How should the employer’s decision to have a C/TPA act as intermediary in the handling of drug test results be documented?
- When an employer chooses to use the C/TPA as the intermediary in the transmission of the MRO’s verified drug test results, this decision should be communicated from the employer to the MRO and the C/TPA.
- We advise the MRO to obtain some documentation of the employer’s decision prior to sending results through the C/TPA.
- Documentation could be in the form of a letter, an email, or record of a telephone conversation with the employer.
- DOT also recommends that MROs maintain listings of the names, addresses, and phone numbers of C/TPA points of contact.
40.45 QUESTION: Rev. 01/02
Where can billing information be entered onto the Federal Drug Testing Custody and Control Form (CCF)?
- 40.45(c)(1) states that the CCF may include billing information if the information is in the area outside the border of the form.
- Therefore, if account codes or collection site codes are entered, they must be placed outside the border, only.
- CCFs with this information pre-printed inside the border (i.e., in the Step 1 box) may be used until the supply of these forms is exhausted. CCFs produced or re-ordered after February 15, 2002, must not have this information inside the border.
- No corrective action is needed nor will a result be impacted if the CCF contains this information inside the border. However, employers and service providers may be subject to enforcement action if this requirement is not met.
40.45 QUESTION: Rev. 01/02
What actual address is required for “Collection Site Address” in Step 1 of the CCF, and what telephone number should the collector provide?
- The collection site address should reflect the location where the collection takes place. If the collection takes place at a clinic, the actual address of that clinic should be used: not a corporate or a “main office”address of the clinic/collection company.
- If the collection takes place on-site at the employer’s place of business (e.g., a bus terminal, a rail yard), the actual address of the employer site should be used.
- If the collection takes place in a “mobile unit” or takes place at an accident site, the collector should enter the actual location address of the collection (or as near an approximation as possible, under the circumstances).
- The required collector telephone number should be the number at which it is most likely that the laboratory, MRO, or employer, if necessary, may contact the collector and the collector’s supervisor.
- Pre-printing certain information onto the CCF is problematic if the information is subject to change.
40.45 QUESTION: Rev. 01/02
What actual address is required for “Can a collector mark through pre-printed employer, MRO, collection site, and/or laboratory information on the CCF if that information is not accurate for a particular collection?
- Yes. When the collector has no “blank” CCFs and the CCFs on-hand contain inaccurate pre-printed employer, MRO, collection site, and/or laboratory information, the collector is permitted to “line through” the inaccurate information and insert legibly the proper information.
- The likelihood of a collection site having CCFs with inaccurate information increases with unexpected collection events (e.g., employee arrives unannounced for post-accident testing).
- If the specimen will be sent to a laboratory different than the one pre-printed on the available CCF, it becomes important for the collector to modify the CCF so that it reflects the name and address of the laboratory to which the specimen will actually be sent. It is also important for the collector to line through any pre-printed billing code and insert the appropriate one, if it is available.
- Finally, laboratories should honor collection site requests to provide an adequate number of “blank” CCFs for use during unexpected collection events. It is important to note that the DOT permits overprinting or pre-printing of CCFs in an effort to streamline the entire testing process, not to limit the distribution of the forms to collection sites.
40.45 QUESTION: Rev. 01/02
May the MRO’s address entered on the CCF be a post-office box number only?
- No. The address must contain at least a number and street address.
- The reason for this requirement is that CCFs are often delivered by courier or messenger services who do not deliver items to post office box addresses.
- The post-office box can be included, but not in lieu of the number and street address.
40.61 QUESTION: Rev. 01/02
May a DOT urine specimen be obtained via catheterization from a patient who is catheterized as part of a medical procedure or who is unconscious?
- No one is ever permitted to obtain a urine specimen for DOT testing purposes from an unconscious individual, whether by catheterization or any other means.
- No one is permitted to catheterize a conscious employee for the purpose of collecting urine for a DOT drug test.
- However, if a person has been catheterized for medical purposes (e.g., a conscious, hospitalized patient in a post-accident test situation), it is permissible to use urine collected by this means for DOT testing purposes. All necessary documentation for a DOT collection must be provided (e.g., the CCF).
- In addition, an employee who normally voids through self-catheterization is required to provide a specimen in that manner.
40.65 QUESTION: Rev. 09/01
Part 40 directs the collector to discard the first specimen if the temperature was out of range or the specimen showed signs of tampering and the employee refused to provide a second specimen under direct observation. The Urine Specimen Collection Guidelines at Section 8, Directly Observed Collection, Number 7 indicate that, in such a situation, the first specimen should be retained and sent to the laboratory. Which requirement is correct?
- When a specimen is out of temperature range or shows signs of tampering and the employee refuses to provide a second specimen under direct observation, it is considered a refusal to test. The collector does not retain the first specimen, but discards it.
- The requirement in the Urine Specimen Collection Guidelines, Version 1.0, to retain the specimen and send it to the laboratory, was inserted inadvertently.
- Urine Specimen Collection Guidelines, Version 1.01, contain the proper procedures as directed by 40.65.
§40.67; §40.69 QUESTION: Rev. 09/01
Can the monitor (or direct observer) of a collection be a co-worker or immediate supervisor of the employee?
- The immediate supervisor of a particular employee may not act as the collector when that employee is tested, unless no other collector is available and the supervisor is permitted to do so under a DOT operating administrations drug and alcohol regulation.
- The immediate supervisor may act as a monitor or observer (if same gender) if there is no alternate method at the collection site to conduct a monitored or observed collection.
- An employee who is in a safety-sensitive position and subject to the DOT drug testing rules should not be a collector, an observer, or a monitor for co-workers who are in the same testing pool or who work together with that employee on a daily basis.
