[Code of Federal Regulations]

[Title 49, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR40.23]



[Page 637-638]

 

                        TITLE 49--TRANSPORTATION

 

          Subtitle A--Office of the Secretary of Transportation

 

PART 40_PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING 

PROGRAMS--Table of Contents

 

                   Subpart B_Employer Responsibilities

 

Sec. 40.23  What actions do employers take after receiving verified 

test results?



    (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--0.39, 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.



[[Page 638]]



    (e) As an employer who receives a drug test result indicating that 

the employee's specimen was dilute, take action as provided in Sec. 

40.197.

    (f) As an employer who receives a drug test result indicating that 

the employee's specimen 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.

    (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) as for the original 

collection.

    (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.