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J. J. Keller protects people and the businesses they run. You can trust our expertise across a wide range of subjects relating to labor, transportation, environmental, and worker safety. Our deep knowledge of federal and state agencies is built on a strong foundation of more than 100 editors and consultants and 70+ years of regulatory compliance experience.

DOT Final Rule: Transportation Workplace Drug and Alcohol Testing Programs

June 21, 2024

The U.S. Department of Transportation is making a series of technical amendments to its drug testing procedures rule, which was effective June 1, 2023. The purpose of these technical amendments is to clarify certain provisions of the rule and address omissions of which we have become aware since the publication of the final rule.

DATES: This final rule is effective June 21, 2024. published in the Federal Register June 21, 2024, page 51981.

View final rule.

Previous Text

§40.14 What collection information must employers provide to collectors?

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 urine specimen collection for you:

* * * *

(e) DER information required at §40.35 of this part.

* * * *

Subpart C—Urine collection personnel

§40.81 What laboratories may be used for DOT drug testing?

(a) As a drug testing laboratory located in the U.S., you are permitted to participate in DOT drug testing only if you are certified by HHS under the National Laboratory Certification Program (NLCP) for each specimen testing methodology performed required under this part.

* * * *

§40.83 How do laboratories process incoming specimens?

* * * *

(d) When you find a specimen meeting the criteria of paragraph (c) of this section, you must document your findings and stop the testing process. Report the result in accordance with §40.97(a)(3).

(e) * * *

(3) If the flaw is not corrected, report the result as rejected for testing in accordance with §40.97(a)(3).

(f) * * *

(2) When you have obtained the correction, or five business days have elapsed, report the result in accordance with §40.97(a).

* * * *

(g) * * *

(2) If the problem(s) is not corrected, you must reject the test and report the result in accordance with §40.97(a)(3).

* * * *

§40.97 What do laboratories report and how do they report it?

* * * *

(c) * * *

(1) * * *

(i) * * *

(M) Results (e.g., positive, adulterated) as listed in paragraph (a) of this section; and

* * * *

(2) Non-negative and Rejected for Testing results: You must fax, courier, mail, or electronically transmit a legible image or copy of the fully completed Copy 1 of the CCF that has been signed by the certifying scientist. In addition, you may provide the electronic laboratory results report following the format and procedures set forth in paragraphs (b)(1)(i) and (ii) of this section.

* * * *

§40.145 On what basis does the MRO verify test results involving adulteration or substitution?

* * * *

(e) * * *

(2) To meet this burden in the case of a substituted specimen, the employee must demonstrate that he or she did produce or could have produced urine through physiological means, meeting the creatinine concentration criterion of less than 2 mg/dL and the specific gravity criteria of less than or equal to 1.0010 or greater than or equal to 1.0200 (see §40.93(b)).

* * * *

(h) * * *

(1) Medically valid evidence demonstrating that the employee is capable of physiologically producing urine meeting the creatinine and specific gravity criteria of §40.93(b).

* * * *

(ii) Assertion by the employee that his or her personal characteristics (e.g., with respect to race, gender, weight, diet, working conditions) are responsible for the substituted result does not, in itself, constitute a legitimate medical explanation. To make a case that there is a legitimate medical explanation, the employee must present evidence showing that the cited personal characteristics actually result in the physiological production of urine meeting the creatinine and specific gravity criteria of §40.93(b).

(2) Information from a medical evaluation under paragraph (g) of this section that the individual has a medical condition that has been demonstrated to cause the employee to physiologically produce urine meeting the creatinine and specific gravity criteria of §40.93(b).

* * * *

(ii) To establish there is a legitimate medical explanation, the employee must demonstrate that the cited medical condition actually results in the physiological production of urine meeting the creatinine and specific gravity criteria of §40.93(b).

§40.159 What does the MRO do when a drug test is invalid?

(a) * * *

(1) Discuss the laboratory results with a certifying scientist to determine if the primary specimen should be tested at another HHS-certified laboratory. If the laboratory did not contact you as required by §§40.91(e) and 40.96(b), you must contact the laboratory.

* * * *

§40.191 What is a refusal to take a DOT drug test, and what are the consequences?

(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 §40.63(c) or §40.72(e), as applicable) for a pre-employment test is not deemed to have refused to test. The collector 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 a specimen for any drug test required by this part or DOT agency regulations. Provided that an employee who does not provide a specimen because he or she has left the testing site before the testing process commences (see §40.63(c) or §40.72(e), as applicable) for a pre-employment test is not deemed to have refused to test. The collector 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;

* * * *

§40.207 What is the effect of a cancelled drug test?

* * * *

(d) If a test is cancelled for a correctible flaw (i.e., §40.203 or §40.205), only the MRO who cancelled the test can reverse the cancellation and must do so within 60 days of the cancellation. After 60 days, the MRO who cancelled the test cannot reverse the cancellation without the permission of ODAPC. For example, if an MRO cancels a test because the MRO did not receive a copy of the CCF, but later receives a copy of the CCF, the MRO may reverse the decision to cancel the test within 60 days. After 60 days, the MRO must contact ODAPC for permission to reverse the cancellation. An MRO must not reverse the cancellation of a test that the laboratory has reported as rejected for testing, as described in §40.83(g). A laboratory is not authorized to reverse a cancellation due to a fatal flaw, as described in §40.199.

§40.245 What is the procedure for an alcohol screening test using a saliva ASD or a breath tube ASD?

(a) * * *

(6) * * *

(ii) The new device you use must be one that has been under your control or that of the employee before the test.

* * * *

§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?

(a) * * *

(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 must be conducted in accordance with the following criteria:

* * * *


Publish Date

June 21, 2024

Author

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Type

Change Notice

Industries

Transportation

Related Topics

Drug and Alcohol Testing - DOT

Governing Bodies

Office of the Secretary of Transportation

Citations

r49CFR40