PART 40 QUESTIONS AND ANSWERS
The Office of General Counsel and Office of Drug and AlcoholPolicy and Compliance of the Department of Transportation areproviding these questions and answers. They constitute official andauthoritative guidance and interpretation concerning 49 CFR Part 40(see 49 CFR 40.5).
When may a collector give an employee permission to leave acollection site?
- A collector may give an employee permission to leave thecollection site only after the testing process is complete
– For tests conducted under § 40.73,the testing process is complete when both the employee and thecollector complete the chain of custody form in the order specifiedin § 40.73(a)(1)-(6). At that time, the collector must advise theemployee that he or she may leave the collection site.
– For tests conducted under §40.193, the testing process is complete only after the employee hasprovided a sufficient specimen and the steps in § 40.73(a)(1)-(6)are complete, or the employee has not provided a sufficientspecimen within three hours of the first unsuccessful attempt toprovide a specimen.
- There is no requirement for a collector to inform an employeethat the failure to remain at the collection site is a refusal.Therefore, if the collector does not inform an employee thatfailure to remain at the collection site is a refusal, it does notmean that the collector has given the employee permission to leavethe collection site. If an employee leaves prior to the completionof the testing process, the employer must decide whether theemployee’s actions constitute a refusal.
What happens if an employee leaves the collection site prior tothe completion of the testing process?
- As noted in § 40.191(a)(2), failure to remain at the collectionsite until the testing process is complete generally constitutes arefusal to test.
- If an employee leaves the collection facility prior to thetesting process being completed, the collector must inform theemployer as required under § 40.191(d). The employer, as requiredunder § 40.355(i), must then determine whether the employee’sactions constitute a refusal to test. To make this determination,the employer should consider the information documented on the CCFand the advice and information received from the collector andservice agents, as well as any supporting information provided bythe employee (i.e., in the event of a medical emergency, copies ofhospital admission records/EMS records/police records, etc).
- The employer must document its decision, and the solidreasoning for the decision, in all collection site refusaldeterminations. Copies of these decisions, and the informationrelied on in making those decisions, must be maintained inaccordance with § 40.333 and the applicable modal recordkeepingrequirements. If during the course of an inspection, the DOTdetermines that you have not properly documented thesedeterminations, you may be subject to penalty in accordance withthese regulations.
The following are some of the changes to the revised UrineSpecimen Collector Guidelines from the previous version [October 1,2010]:
Updated web siteaddresses/hyperl
See All News & Events