§ 40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?

(a) DesignationYes, ofas collectionan site. (1) Each employer drug testing program shall have one or more designated collection sites which have all necessary personnel, materials,you equipmentmust, facilitiesafter andobtaining supervisionan toemployee's providewritten for the collectionconsent, security,request temporarythe storage,information andabout shipping or transportation of urine specimens to a certified drug testing laboratory. An independent medical facility may also be utilized as a collection site provided the otheremployee applicablelisted requirements of this part are met.
(2) A designated collection site may be any suitable location where a specimen can be collected under conditions set forth in thisparagraph part, including a properly equipped mobile facility. A designated collection site shall be a location having an enclosure within which private urination can occur, a toilet for completion of urination (unless a single-use collector is used with sufficient capacity to contain the void), and a suitable clean surface for writing. The site must also have a source of water for washing hands, which, if practicable, should be external to the enclosure where urination occurs.
(b) Security. The purpose of this paragraph is to prevent unauthorized access which could compromise the integrity of the collection process or the specimensection.
(1) ProceduresThis shallrequirement provideapplies foronly the designated collection site to beemployees secure.seeking If a collection site facility is dedicated solely to urinebegin collection,performing itsafety-sensitive shallduties be secure at all times. If a facility cannot be dedicated solely to drug testing, the portion of the facility used for testingyou shall be secured during drug testing.
(2) A facility normally used for otherthe purposes,first suchtime as a public rest room or hospital examining room, may be secured by visual inspection to ensure other persons are not present and undetected access (i.e.g., through a rearnew doorhire, notan inemployee thetransfers viewinto ofa thesafety-sensitive collection site personposition) is not possible. SecurityIf duringthe collectionemployee mayrefuses be maintained by effective restriction of access to collectionprovide materialsthis andwritten specimens. In the case of a public rest roomconsent, theyou facility must benot postedpermit against access during the entireemployee collection procedure to avoidperform embarrassmentsafety-sensitive to the employee or distraction of the collection site personfunctions.
(3b) IfYou itmust isrequest impractical to maintain continuous physical security of a collection site from the timeinformation thelisted specimen is presented until the sealed mailer is transferred for shipment, the following minimum procedures shall apply. The specimen shall remain under the direct control of the collection site person from delivery to its being sealed in thethis mailer.paragraph The mailer shall be immediately mailed, maintained in secure storage, or remain until mailed under the personal control of the collection site person.
(cb) Chain of custody. The chain of custody block of the drug testing custody and control form shall be properly executed by authorized collection site personnel upon receipt of specimens. Handling and transportation of urine specimens from oneDOT-regulated authorizedemployers individualwho or place to another shall always be accomplished through chain of custody procedures. Since specimens and documentation are sealed in shipping containers that would indicate any tampering during transit to the laboratory and couriers, express carriers, and postal service personnel do not have accessemployed to the chainemployee of custody forms, there is no requirement that such personnel document chain of custody for the shipping container during transit. Nor is there a requirement that there be a chain of custody entry when a specimen which is sealed in such a shipping container is put into or taken out of secure storage at the collection site prior to pickup by such personnel. This means that the chain of custody is not broken, and a test shall not be canceled, because couriers, express carriers, postal service personnel, or similar persons involved solely with the transportation of a specimen to a laboratory, have not documented their participation in the chain of custody documentation or because the chain of custody does not contain entries related to putting the specimen into or removing it from secure temporary storage at the collection site. Every effort shall be made to minimize the number of persons handling specimens.
(d) Access to authorized personnel only. No unauthorized personnel shall be permitted in any partperiod ofduring the designatedtwo collectionyears sitebefore where urine specimens are collected or stored. Only the collectiondate site person may handle specimens prior to their securement in the mailing container or monitor or observe specimen collection (under the conditions specified in this part). In order to promote security of specimens, avoid distraction of the collection site person and ensure against any confusion in the identification of specimens, the collection site person shall have only one donor under his or her supervision at any time. For this purpose, a collection procedure is complete when the urine bottle has been sealed and initialled, the drug testing custody and control form has been executed, and the employee's hasapplication departed the site (or, in the case of an employee who was unable to provide a complete specimen, has entered a waiting area).transfer:
(e) Privacy. (1) ProceduresAlcohol fortests collectingwith urine specimens shall allow individual privacy unless there is a reasonresult toof believe0.04 that a particular individual may alter or substitutehigher thealcohol specimen to be provided, as further described in this paragraph.concentration;
(2) ForVerified purposespositive ofdrug this part, the following circumstances are the exclusive grounds constituting a reason to believe that the individual may alter or substitute the specimen:tests;
(i3) TheRefusals employee has presented a urine specimen that falls outside the normal temperature range (32°-38° C/90°-100° F), and
(A) The employee declines to providebe atested measurement of body temperature (takenincluding byverified aadulterated meansor othersubstituted thandrug usetest of a rectal thermometerresults), as provided in paragraph (f)(14) of the part; or
(B4) BodyOther temperatureviolations varies by more than 1°C/1.8°F from the temperature of theDOT specimen;
(ii)agency Thedrug last urine specimen provided by the employee (i.e., on a previous occasion) was determined by the laboratory to have a specific gravity of less than 1.003 and aalcohol creatininetesting concentration below .2g/Lregulations;
(iii) The collection site person observes conduct clearly and unequivocally indicating an attempt to substitute or adulterate the sample (e.g., substitute urine in plain view, blue dye in specimen presented, etc.); or
(iv5) TheWith employeerespect has previously been determined to haveany usedemployee awho controlledviolated substance without medical authorization and the particular test was being conducted under a DOT agencydrug regulationand providingalcohol for follow-up testing upon or after return to service.
(3) A higher-level supervisor of the collection site personregulation, ordocumentation a designated employer representative, shall review and concur in advance with any decision by a collection site person to obtain a specimen under the direct observation of a same gender collection site person based upon the circumstancesemployee's describedsuccessful incompletion subparagraph (2) of thisDOT paragraph.
(f) Integrity and identity of specimen. Employers shall take precautions return-to-duty ensurerequirements that a urine specimen is not adulterated or diluted during the collection procedure and that information on the urine bottle and on the urine custody and control form can identify the individual from whom the specimen was collected. The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified:
(1)including Tofollow-up deter the dilution of specimens at the collection site, toilet bluing agents shall be placed in toilet tanks wherever possible, so the reservoir of water in the toilet bowl always remains blue. Where practicable, there shall be no other source of water (e.g., shower or sinktests) in the enclosure where urination occurs. If there is another source of water in the enclosureprevious itemployer shalldoes be effectively secured or monitored to ensure it is not usedhave asinformation aabout source for diluting the specimen.
(2)return-do-duty Whenprocess an individual arrives at the collection site, the collection site person shall ensure that the individual is positively identified as the employee selected for testing (e.g., throughan presentation of photo identification or identification by the employer's representative).who Ifdid the individual's identity cannot be established, the collection site person shall not proceedhire withan the collection. If the employee requests,who thetested collectionpositive siteon persona shallpre-employment show his/her identification to the employee.
(3test) If the individual fails to arrive at the assigned time, theyou collectionmust siteseek person shall contact the appropriate authority to obtain guidancethis oninformation from the action to be takenemployee.
(4c) The collectioninformation siteobtained personfrom shall ask the individual to remove any unnecessary outer garments such as a coatprevious oremployer jacketincludes that might conceal items or substances that could be used to tamper with or adulterate the individual's urine specimen. The collection site person shall ensure that all personal belongings such as a purse or briefcase remain with the outer garments. The individual may retain his or her wallet. If the employee requests it, the collection site personnel shall provide the employee a receipt for any personaldrug belongings.
(5) The individual shall be instructed to wash and dry his or heralcohol handstest priorinformation toobtained urination.
(6)from Afterprevious washingemployers hands,under thethis individualsection shall remain in the presence of the collection site person and shall not have access to any water fountain, faucet, soap dispenser, cleaning agent or any other materials which could be used to adulterate the specimen.
(7) The individual may provide his/her specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy. The collection site person shall provide the individual with a specimen bottle or collection container, if applicable, forDOT thisagency purposeregulations.
(8d) The collection site person shall note any unusual behavior or appearance on the urine custody and control form.
(9) In the exceptional event that an employer-designated collection site is not accessible and there is an immediate requirement for specimen collection (e.g., circumstances require a post-accident test), a public rest room may be used according to the following procedures: A collection site person of the same gender as the individual shall accompany the individual into the public rest room which shall be made secure during the collection procedure. If possiblefeasible, ayou toiletmust bluingobtain agent shall be placed in the bowl and anyreview accessiblethis toiletinformation tank.before The collection site person shall remain in the restemployee room,first butperforms outsidesafety-sensitive the stall, until the specimen is collectedfunctions. If nothis bluing agent is available to deter specimen dilution, the collection site person shall instruct the individual not to flush the toilet until the specimen is delivered to the collection site person. After the collection site person has possession of the specimenfeasible, theyou individualmust willobtain be instructed to flush the toilet and toreview participate with the collectioninformation site person in completing the chain of custody procedures.
(10) The collection site person shall instruct the employee to provide at least 45 ml of urine under the split sample method of collection or 30 ml of urine under the single sample method of collection.
(i)(A) Employers with employees subject to drug testing only under the drug testing rules of the Research and Special Programs Administration and/or Coast Guard may use the “split sample” method of collection or may collect a single sample for those employees.
(B) Employers with employees subject to drug testing under the drug testing rules of the Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration, or Federal Aviation Administration shall use the “split sample” method of collection for those employees.
(ii) Employers using the split sample method of collection shall follow the procedures in this paragraph (f)(10)(ii):
(A) The donor shall urinate into a collection container or a specimen bottle capable of holding at least 60 ml.
(B)(1) If a collection container is used, the collection site person, in the presence of the donor, pours the urine into two specimen bottles. Thirty (30) ml shall be poured into one specimen bottle, to be used as thesoon primary specimen. At least 15 ml shall be poured into the other bottle, to be used as the split specimenpossible.
(2) If a single specimen bottle is used as a collection containerHowever, theyou collectionmust sitenot person,permit in the presenceemployee of the donor, shall pour 15 ml of urine from the specimen bottle into a second specimen bottle (to beperform usedsafety-sensitive asfunctions theafter split specimen) and retain the remainder (at least 30 ml)days infrom the collectiondate bottleon (towhich be used as the primaryemployee specimen).
(C)first Nothingperformed insafety-sensitive this section precludes the use of a collection method or system that does not involve the physical pouring of urine from one container or bottle to another by the collection site personfunctions, providedunless thatyou thehave methodobtained or systemmade resultsand indocumented the subdivision of the specimen into a primarygood (30faith ml)effort and a split (at least 15 ml) specimen that can be transmitted to theobtain laboratory and tested in accordance with the requirements of this Subpartinformation.
(De) Both bottles shall be shipped in a single shipping container, together with copies 1,2, and the split specimen copy of the chain of custody form, to the laboratory.
(E) If theyou testobtain resultinformation ofthat the primary specimen is positive, the employee mayhas requestviolated that the MRO direct that the split specimen be tested in a differentDOT DHHS-certifiedagency laboratory for presence of the drug(s) forand whichalcohol aregulation, positiveyou resultmust wasnot obtaineduse in the test of the primary specimen. The MRO shall honor such a request if it is made within 72 hours of the employee havingto beenperform notifiedsafety-sensitive offunctions aunless verifiedyou positivealso testobtain result.
(F)information When the MRO informs the laboratory in writing that the employee has requestedsubsequently acomplied testwith of the split specimen, the laboratory shall forward, return-to a different DHHS-approvedduty laboratory,requirements theof splitSubpart specimenO bottle, with seal intact, a copy of thethis MROpart request, and the split specimen copy of the chain of custody form with appropriate chain of custody entries.
(G) The result of the test of the split specimen is transmitted by the second laboratory to the MRO.
(H) Action required by DOT agency regulations as the result of a positive drug test (e.g., removal from performing a safety-sensitive function) is not stayed pending the result of the test of the split specimen.
(I) If the result of the test of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, the MRO shall cancel the test, and reportalcohol the cancellation and the reasons for it to the DOT, the employer, and the employeeregulations.
(iiif) EmployersYou usingmust theprovide single sample collection method shall follow the procedures in paragraph:
(A) The collector may choose to directeach the employee to urinate either directly into a specimen bottle or into a separate collection container.
(B) If a separate collection container is used, the collection site person shall pour at least 30 ml of the urineemployers from thewhom collectionyou containerrequest intoinformation theunder specimenparagraph bottle in the presence of the employee.
(ivb)(A)(1) In either collection methodology, upon receiving the specimen from the individual, the collection site person shall determine if the specimen has at least 30 milliliters of urinethis forsection awritten singleconsent specimen collection or 45 milliliters of urine for a split specimen collection.
(2) If the individualrelease has not provided the required quantity of urine, the specimeninformation shallcited bein discarded.paragraph The collection site person shall direct the individual to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a new urine specimen, whichever occurs first. If the employee refuses to drink fluids as directed or to provide a new urine specimen, the collection site person shall terminate the collection and notify the employer that the employee has refused to submit to testing.
(3) If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, the collection site person shall discontinue the collection and notify the employer.
(B) The employer shall direct any employee who does not provide a sufficient urine specimen (see paragraph (f)(10)(iv)(A)(3) of this section) to obtain, as soon as possible after the attempted provision of urine, an evaluation from a licensed physician who is acceptable to the employer concerning the employee's ability to provide an adequate amount of urine.
(1g) IfThe therelease physician determines, in his or her reasonable medical judgment, that a medical condition has, or with a high degree of probability,information couldunder have,this precludedsection themust employee from providing an adequate amount of urine, the employee's failure to provide an adequate amount of urine shall not be deemedin aany refusalwritten toform take a test. For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., afax, urinary system dysfunction) or a documented pree-existing psychological disordermail, butletter) doesthat notensures include unsupported assertions of “situational anxiety” or dehydrationconfidentiality. TheAs physician shall provide to the MROprevious a brief written statement setting forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee. Upon receipt of this statement, the MRO shall report his or her conclusions to the employer in writing.
(2) If the physician, inyou hismust ormaintain her reasonable medical judgment, is unable to make the determination set forth in paragraph (f)(10)(iv)(B)(1) of this section, the employee's failure to provide an adequate amount of urine shall be regarded as a refusal to take a test. The physician shall provide to the MRO a brief written statementrecord settingof forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee. Upon receipt of this statementreleased, theincluding MRO shall report his or her conclusions to the employer in writing.
(11) After the specimen has been provided and submitted to the collection site persondate, the individualparty shall be allowed to washwhom hisit orwas her hands.
(12) Immediately after the specimen is collectedreleased, the collection site person shall measure the temperature of the specimen. The temperature measuring device used must accurately reflect the temperature of the specimen and not contaminate the specimen. The time from urination to temperature measure is critical and in no case shall exceed 4 minutes.
(13) A specimen temperature outside the range of 32°-38° C/90°-100° F constitutes a reasonsummary to believe that the individual has altered or substituted the specimen (see paragraph (e)(2)(i) of this section). In such cases, the individualinformation supplying the specimen may volunteer to have his or her oral temperature taken to provide evidence to counter the reason to believe the individual may have altered or substituted the specimenprovided.
(14h) ImmediatelyIf afteryou theare specimenan isemployer collected,from thewhom collectioninformation site person shall also inspect the specimen to determine its color and look for any signs of contaminants. Any unusual findings shall be noted on the urine custody and control form.
(15) All specimens suspected of being adulterated shall be forwarded to the laboratory for testing.
(16) Whenever there is reasonrequested tounder believe that a particular individual has altered or substituted the specimen as described in paragraph (eb)(2) (i) or (iii) of this section, ayou second specimen shall be obtained as soon as possible under the direct observation of a same gender collection site person.
(17) Both the individual being tested and the collection site person shall keep the specimen in view at all times prior to its being sealed and labeled. As provided belowmust, theafter specimenreviewing shall be sealed (by placement of a tamperproof seal over the bottle cap and down the sides of the bottle) and labeled in the presence of the employee. If the specimen is transferred to a second bottle, the collection site person shall request the individual to observe the transfer of the specimen and the placement of the tamperproof seal over the bottle cap and down the sides of the bottle.
(18) The collection site person and the individual being tested shall be present at the same time during procedures outlined in paragraphs (f)(19)-(f)(22) of this section.
(19) The collection site person shall place securely on the bottle an identification label which contains the date, the individual's specimen numberspecific, andwritten any other identifying information provided or required by the employer. If separate from the labelconsent, theimmediately tamperproofrelease seal shall also be applied.
(20) The individual shall initial the identificationrequested label on the specimen bottle for the purpose of certifying that it is the specimen collected from him or her.
(21) The collection site person shall enter on the drug testing custody and control form all information identifyingto the specimen.employer Themaking collection site person shall sign the drug testing custody and control form certifying that the collection was accomplished according to the applicable Federal requirementsinquiry.
(22)(i) TheAs individual shall be asked to read and sign a statement on the drugemployer testingrequesting custody and control form certifying that the specimeninformation identified as having been collected from him or her is in fact the specimen he or she provided.
(ii) When specified by DOT agency regulation or required byunder thethis collection site (other than an employer site) or by the laboratorysection, theyou employeemust maymaintain be required to sign a consent or release form authorizing the collection of the specimenwritten, analysisconfidential ofrecord the specimen for designated controlled substances, and release of the resultsinformation toyou theobtain employer.or The employee may not be required to waive liability with respect to negligence on the part of any person participating in the collection,good handlingfaith orefforts analysisyou ofmade the specimen or to indemnifyobtain any person for the negligence of othersinformation.
(23) TheYou collectionmust siteretain personthis shallinformation completefor thethree chainyears offrom custody portion of the drugdate testing custody and control form to indicate receipt of the specimen from the employee's andfirst shallperformance certify proper completion of thesafety-sensitive collection.
(24)duties The urine specimen and chain of custody form are now ready for shipmentyou. If the specimen is not immediately prepared for shipment, the collection site person shall ensure that it is appropriately safeguarded during temporary storage.
(25j)(i) WhileAs any part of the above chain of custody procedures is being performedemployer, ityou ismust essentialalso thatask the urineemployee specimenwhether andhe custody documents be under the control of the involved collection site person. If the involved collection site person leaves his or hershe workhas stationtested momentarilypositive, the collection site person shall take the specimen and drug testing custody and control form with him or herrefused or shall secure them. After the collection site person returns to the work stationtest, theon custodyany processpre-employment willdrug continue. If the collection site person is leaving for an extended period of time, he or shealcohol shalltest packageadministered the specimen for mailing before leaving the site.
(ii) The collection site person shall not leave the collection site in the interval between presentation of the specimen by the employee and securement of the sample with an identifyingemployer labelto bearingwhich the employee's specimenapplied identification number (shown on the urine custody and control form) and seal initialed by the employee. If it becomes necessary for the collection site person to leave the site during this interval, thebut collectiondid shallnot be nullified and (at the election of the employer) a new collection begun.
(g) Collection control. To the maximum extent possibleobtain, collectionsafety-sensitive sitetransportation personnelwork shallcovered keepby theDOT individual'sagency specimendrug bottle within sight both before and afteralcohol the individual has urinated. After the specimen is collected, it shall be properly sealed and labeled.
(h) Transportation to laboratory. Collection site personnel shall arrange to ship the collected specimen to the drug testing laboratory.rules The specimens shall be placed in shipping containers designed to minimize the possibility of damage during shipment (e.g., specimen boxes and/or padded mailers); and those containers shall be securely sealed to eliminate the possibilitypast oftwo undetected tampering with the specimen and/or the formyears. OnIf the tapeemployee sealingadmits the shipping container, the collection site person shall sign and enter the date specimens were sealed in the shipping container for shipment. The collection site person shall ensure that thehe chain of custody documentation is enclosed in each container sealed for shipment to the drug testing laboratory. Since specimens and documentation are sealed in shipping containers that would indicate any tampering during transit to the laboratory and couriers, express carriers, and postal service personnel do not have access to the chain of custody forms, there is no requirement that such personnel document chain of custody for the shipping container during transit. Nor is there a requirement that there be a chain of custody entry when a specimen which is sealed in such a shipping container is put into or takenshe outhad of secure storage at the collection site prior to pickup by such personnel. This means that the chain of custody is not broken, and a positive test shall not be canceled, because couriers, express carriers, postal service personnel, or similar persons involved solely with the transportation of a specimenrefusal to a laboratorytest, haveyou notmust documented their participation in the chain of custody documentation or because the chain of custody does not containuse entries related to putting the specimen into or removing it from secure temporary storage at the collection site.
(i) Failure to cooperate. If the employee refuses to cooperateperform withsafety-sensitive thefunctions collectionfor processyou, theuntil collection site person shall inform the employer representative and shallunless document the non-cooperation on the drug testing custody and control form.
(j) Employee requiring medical attention. If the sample is being collected from an employee indocuments needsuccessful ofcompletion medical attention (e.g., as part of athe postreturn-accidentto-duty testprocess given(see inparagraphs an emergency medical facility(b), necessary medical attention shall not be delayed in order to collect the specimen.
(k5) Use of chain of custody form. A chain of custody form (and a laboratory internal chain of custody document, where applicable(e), shall be used for maintaining control and accountability of eachthis specimen from the point of collection to final disposition of the specimensection). The date and purpose shall be documented on the form each time a specimen is handled or transferred and every individual in the chain of custody shall be identified. Since specimens and documentation are sealed in shipping containers that would indicate any tampering during transit to the laboratory and couriers, express carriers, and postal service personnel do not have access to the chain of custody forms, there is no requirement that such personnel document chain of custody for the shipping container during transit. Nor is there a requirement that there be a chain of custody entry when a specimen which is sealed in such a shipping container is put into or taken out of secure storage at the collection site prior to pickup by such personnel. This means that the chain of custody is not broken, and a test shall not be canceled, because couriers, express carriers, postal service personnel, or similar persons involved solely with the transportation of a specimen to a laboratory, have not documented their participation in the chain of custody documentation or because the chain of custody does not contain entries related to putting the specimen into or removing it from secure temporary storage at the collection site. Every effort shall be made to minimize the number of persons handling specimens.
[54 FR 49866, Dec. 1, 1989, as amended at 59 FR 7355, Feb. 15, 1994; 59 FR 43000, Aug. 19, 1994; 61 FR 37699, July 19, 1996]