§ 40.11 What are the general responsibilities of employers under this regulation?

(a) As an employer, you are responsible for meeting all applicable requirements and procedures of this part.

(b) You are responsible for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of DOT agency regulations.

(c) All agreements and arrangements, written or unwritten, between and among employers and service agents concerning the implementation of DOT drug and alcohol testing requirements are deemed, as a matter of law, to require compliance with all applicable provisions of this part and DOT agency drug and alcohol testing regulations. Compliance with these provisions is a material term of all such agreements and arrangements.

§ 40.13 How do DOT drug and alcohol tests relate to non-DOT tests?

Cross Reference

88 FR 27637, May 2, 2023

(a) DOT tests must be completely separate from non-DOT tests in all respects.

(b) DOT tests must take priority and must be conducted and completed before a non-DOT test begins. For example, you must discard any excess urine remaining from a DOT test and collect a separate void for the subsequent non-DOT test.

(c) Except as provided in paragraph (d) of this section, you must not perform any tests on DOT urine or breath specimens other than those specifically authorized by this part or DOT agency regulations. For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for DNA testing or other specimen identity testing.

(d) The sole exception to paragraph (c) of this section applies when a DOT drug test collection is conducted as part of a physical examination required by DOT agency regulations. In such cases, it is permissible to conduct required medical tests related to that physical examination (e.g., glucose testing) on any urine remaining in the collection container after the DOT urine specimens have been sealed into specimen bottles.

(e) No one is permitted to change or disregard the results of DOT tests based on non-DOT test results. For example, as an employer, you must not disregard a verified positive DOT drug test result because an employee presents a negative test result from a specimen collected by the employee’s physician or a DNA test purporting to question the identity of the DOT specimen.

(f) As an employer, you must not use the CCF or the ATF in your non-DOT drug and alcohol testing programs. This prohibition includes using DOT forms with references to DOT programs or agencies crossed out. You must always use the CCF and ATF for all DOT-mandated drug and alcohol tests.

§ 40.14 What collection information must employers provide to collectors?

Cross Reference

88 FR 27637, May 2, 2023

As an employer, or as an employer’s service agent (for example, a C/TPA), you must ensure that the collector has the following information when conducting a urine specimen collection:

• Full name of the employee being tested
• Employee SSN or identification number
• Laboratory name and address (may be pre-printed on the CCF)
• Employer name, address, phone number, and fax number (may be pre-printed on the CCF at Step 1–A)
• DER information required at § 40.35
• MRO name, address, phone number, and fax number (may be pre-printed on the CCF at Step 1–B)
• The DOT agency regulating the employee’s safety-sensitive duties (may be pre-printed on the CCF at Step 1–D)
• Test reason: Pre-employment; Random; Reasonable Suspicion/Reasonable Cause; Post-Accident; Return-to-Duty; or Follow-up
• Whether the test is to be observed (see § 40.67)
• (Optional) C/TPA name, address, phone number, and fax number (may be pre-printed on the CCF)

75 FR 59107, Sept. 27, 2010

§ 40.15 May an employer use a service agent to meet DOT drug and alcohol testing requirements?

(a) As an employer, you may use a service agent to perform tasks needed to comply with this part and DOT agency drug and alcohol testing regulations, consistent with the requirements of Subpart Q and other applicable provisions of this part.

(b) As an employer, you are responsible for ensuring that any service agents you use meet the qualifications required by this part (e.g., § 40.121 for MROs).

(c) You remain responsible for compliance with all applicable requirements of this part and DOT drug and alcohol testing regulations, even when using a service agent. Good-faith reliance on a service agent is not a defense in an enforcement action.

(d) As an employer, you must not permit a service agent to act as your DER.

§ 40.17 Is an employer responsible for obtaining information from its service agents?

Yes. As an employer, you are responsible for obtaining information required by this part from your service agents. Permitting an individual to perform safety-sensitive duties before receiving required test results is a violation of DOT regulations.

§ 40.19 [Reserved]

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