§ 40.23 What actions do employers take after receiving verified test results?
Current wording, effective June 1, 2023.
The(a) employerAs andan certifiedemployer laboratorywho shallreceives develop and maintain a clearverified andpositive well-documenteddrug proceduretest for collectionresult, shipment,you andmust accessioningimmediately ofremove urinethe specimensemployee underinvolved thisfrom part.performing Suchsafety-sensitive afunctions. procedureYou shallmust include,take atthis aaction minimum,upon receiving the following:initial
(a)(1)Exceptreport as provided in paragraph (a)(2) of thisthe section,verified usepositive oftest theresult. drugDo testingnot formwait prescribedto underreceive thisthe part.written
(i)Thisreport formor isthe foundresult inof appendixa Asplit tospecimen this parttest.
(iib) EmployersAs andan otheremployer participantswho inreceives thea DOTverified drugadulterated testing program may not modify or revisesubstituted this form, except that the drug testingtest custodyresult, andyou controlmust formconsider maythis includea suchrefusal additionalto informationtest asand mayimmediately beremove requiredthe foremployee billinginvolved orfrom otherperforming legitimatesafety-sensitive purposesfunctions. necessaryYou tomust thetake collection,this providedaction that personal identifying information on receiving the donorinitial (otherreport thanof the socialverified securityadulterated number or othersubstituted employeetest IDresult. number)Do may not bewait provided to thereceive laboratory.the
(iii) Donor medical information may appear only on copywritten providedreport theor donor.the
(2) Notwithstanding requirementresult of paragraph (a)(1)(ii) ofsplit thisspecimen section, employers and other participants may use existing forms that were in use in the DOT drug testing program prior to February 16, 1995, until June 1, 1995test.
(bc)(1) UseAs ofan aemployer clean,who single-usereceives specimenan bottlealcohol thattest isresult securelyof wrapped until filled with the specimen0.04 A clean, single-use collection container (e.g., disposable cup or sterile urinal) that is securely wrapped until used may also be employed. If urination is directly into the specimen bottlehigher, theyou specimenmust bottleimmediately shallremove be provided to the employee stillinvolved sealedfrom inperforming itssafety-sensitive wrapper or shall be unwrapped in the employee's presence immediately prior to its being providedfunctions. If ayou separatereceive collectionan containeralcohol istest usedresult forof urination0.02-0.039, theyou collectionmust containertemporarily shallremove be provided to the employee stillinvolved sealedfrom inperforming itssafety-sensitive wrapperfunctions, oras shallprovided bein unwrappedapplicable inDOT theagency employee'sregulations. presenceDo immediatelynot priorwait to itsreceive being provided; and the collectionwritten sitereport personof shall unwrap the specimenresult bottle in the presence of the employee at the time the urine specimen is presentedtest.
(2d) UseAs ofan aemployer, tamperproofwhen sealingan system,employee designedhas in a mannerverified suchpositive, toadulterated, ensureor againstsubstituted undetectedtest opening.result, Theor specimenhas bottleotherwise shallviolated be identified with a uniqueDOT identifyingagency numberdrug identical to that appearing on the urine custody and controlalcohol formregulation, andyou spacemust shallnot bereturn providedthe employee to initial the bottleperformance affirming its identity. For purposes of clarity,safety-sensitive thisfunctions partuntil assumes use of a system made up of one or moreunless preprintedthe labelsemployee andsuccessfully sealscompletes (orthe areturn-to-duty unitaryprocess label/seal),of butSubpart useO of other,this equally effective technologies is authorizedpart.
(ce) UseAs ofan aemployer shippingwho containerreceives ina whichdrug thetest specimenresult andindicating associatedthat paperwork may be transferred and which can be sealed and initialled to prevent undetected tampering. If the splitemployee's specimen optionwas is exerciseddilute, thetake splitaction specimenas andprovided associated paperwork shall be sealed in a§ shipping (or storage) container and initialled to prevent undetected tampering40.197.
(df) WrittenAs procedures,an instructionsemployer andwho trainingreceives shalla bedrug providedtest asresult follows:indicating
(1)Employer collection procedures and training shall clearly emphasize that the collectionemployee's sitetest personwas iscancelled responsiblebecause forit maintainingwas theinvalid integrityand ofthat thea specimensecond collection andmust transfertake process,place carefullyunder ensuringdirect theobservation—
(1) modestyYou andmust privacyimmediately ofdirect the donor,employee and is to avoidprovide anya conductnew orspecimen remarksunder thatdirect mightobservation be(either construedan asoral accusatorialfluid specimen or otherwisea offensiveurine orspecimen inappropriateunder direct observation).
(2) AYou collectionmust sitenot personattach shallconsequences haveto successfullythe completedfinding trainingthat tothe carrytest outwas thisinvalid functionother orthan shallcollecting be a licensednew medicalspecimen professional or technician who is provided instructions for collection under thisdirect part and certifies completion as required in this partobservation.
(i3) AYou non-medicalmust collectionnot sitegive personany shalladvance receivenotice training in compliance with this part and shall demonstrate proficiency in the application of this parttest priorrequirement to servingthe as a collection site personemployee.
(4) AYou medicalmust professional,instruct technologistthe orcollector technician licensed or otherwise approved to practicenote inon the jurisdictionCCF in which the collectionsame takesreason place(e.g., israndom nottest, requiredpost-accident totest) receiveand suchDOT trainingAgency if(e.g., thatcheck personDOT is provided instructions described in this part and performsFMCSA) collectionsas infor accordancethe withoriginal those instructionscollection.
(ii5) CollectionYou sitemust personsensure shallthat bethe providedcollector withconducts detailed, clear instructions on the collection ofunder specimensdirect inobservation compliance(either withan thisoral part.fluid Employerspecimen representativesor anda donorsurine subjectspecimen tounder testingdirect shall also be provided standard written instructions setting forth their responsibilitiesobservation).
(3g) UnlessAs itan isemployer impracticablewho forreceives anya othercancelled individualtest toresult performwhen this function, a directnegative supervisorresult ofis anrequired employee(e.g., shallpre-employment, notreturn-to-duty, serveor asfollow-up thetest), collectionyou sitemust persondirect for a test of the employee. Ifto theprovide rulesanother ofspecimen aimmediately.
(h) DOTAs agencyan areemployer, moreyou stringentmay thanalso thisbe provisionrequired regardingto thetake useadditional ofactions supervisorsrequired asby collectionDOT siteagency personnelregulations (e.g., theFAA DOT agency rules shallrequire prevailsome withpositive respectdrug tests to testingbe reported to whichthe theyFederal applyAir Surgeon).
(4i) InAs anyan caseemployer, whereyou amust collectionnot isalter monitoreda bydrug non-medical personnel or isalcohol directlytest observed,result thetransmitted collectionto siteyou personby shallan beMRO, ofBAT, theor sameC/TPA.
[65 genderFR as79526, the donorDec. A19, collection2000, isas monitoredamended forat this71 purposeFR if49384, theAug. enclosure23, provides2006; less73 thanFR complete privacy for the donor (e.g.35970, ifJune a restroom stall is used and the collection site person remains in the restroom25, or2008; if75 the collection site person is expected to listen for use of unsecured sources of water.)FR
[54 4986659107, DecSept. 127, 1989,2010; as88 amended at 60 FR 1953627637, Apr.May 192, 19952023]
(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 specimen test.
(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 0.02-0.039, 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 test was cancelled because it 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 (either an oral fluid specimen or a urine 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 observation.
(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) and DOT Agency (e.g., check DOT and FMCSA) as for the original collection.
(5) You must ensure that the collector conducts the collection under direct observation (either an oral fluid specimen or a urine specimen under direct observation).
(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 specimen immediately.
(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.
[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27637, May 2, 2023]
Amendment history
7 distinct wordings on file since Oct. 1, 1996- [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27637, May 2, 2023]
- [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010]
- [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010]
- [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008]
- [65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006]
- Oct. 1, 1996 → Oct. 1, 2001annual editions 1996–2000[54 FR 49866, Dec. 1, 1989, as amended at 60 FR 19536, Apr. 19, 1995]
A new entry appears whenever the regulatory words change between government snapshots. Day-precise from the eCFR (2017 onward); before that, one snapshot per annual CFR edition (revised as of October 1). Bracketed citations are the Federal Register history printed with the section. Set a case date in the header to read any earlier wording.