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§40.21 — May an employer stand down an employee before the MRO has completed the verification process? (a) As an employer, you are prohibited from standing employees down, except consistent with a waiver a DOT agency grants under this section. |
(b) You may make a request to the concerned DOT agency for a waiver from the prohibition of paragraph (a) of this section. Such a waiver, if granted, permits you to stand an employee down following the MRO's receipt of a laboratory report of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test pertaining to the employee. (1) For this purpose, the concerned DOT agency is the one whose drug and alcohol testing rules apply to the majority of the covered employees in your organization. The concerned DOT agency uses its applicable procedures for considering requests for waivers. |
(2) Before taking action on a waiver request, the concerned DOT agency coordinates with other DOT agencies that regulate the employer's other covered employees. |
(3) The concerned DOT agency provides a written response to each employer that petitions for a waiver, setting forth the reasons for the agency's decision on the waiver request. |
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(c) Your request for a waiver must include, as a minimum, the following elements: (1) Information about your organization: (i) Your determination that standing employees down is necessary for safety in your organization and a statement of your basis for it, including any data on safety problems or incidents that could have been prevented if a stand-down procedure had been in place; |
(ii) Data showing the number of confirmed laboratory positive, adulterated, and substituted test results for your employees over the two calendar years preceding your waiver request, and the number and percentage of those test results that were verified positive, adulterated, or substituted by the MRO; |
(iii) Information about the work situation of the employees subject to stand-down, including a description of the size and organization of the unit(s) in which the employees work, the process through which employees will be informed of the stand-down, whether there is an in-house MRO, and whether your organization has a medical disqualification or stand-down policy for employees in situations other than drug and alcohol testing; and |
(iv) A statement of which DOT agencies regulate your employees. |
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(2) Your proposed written company policy concerning stand-down, which must include the following elements: (i) Your assurance that you will distribute copies of your written policy to all employees that it covers; |
(ii) Your means of ensuring that no information about the confirmed positive, adulterated, or substituted test result or the reason for the employee's temporary removal from performance of safety-sensitive functions becomes available, directly or indirectly, to anyone in your organization (or subsequently to another employer) other than the employee, the MRO and the DER; |
(iii) Your means of ensuring that all covered employees in a particular job category in your organization are treated the same way with respect to stand-down; |
(iv) Your means of ensuring that a covered employee will be subject to stand-down only with respect to the actual performance of safety-sensitive duties; |
(v) Your means of ensuring that you will not take any action adversely affecting the employee's pay and benefits pending the completion of the MRO's verification process. This includes continuing to pay the employee during the period of the stand-down in the same way you would have paid him or her had he or she not been stood down; |
(vi) Your means of ensuring that the verification process will commence no later than the time an employee is temporarily removed from the performance of safety-sensitive functions and that the period of stand-down for any employee will not exceed five days, unless you are informed in writing by the MRO that a longer period is needed to complete the verification process; and |
(vii) Your means of ensuring that, in the event that the MRO verifies the test negative or cancels it — [A] You return the employee immediately to the performance of safety-sensitive duties; |
[B] The employee suffers no adverse personnel or financial consequences as a result; |
| [C] For a verified negative result, the employee will not be required to submit an alternate specimen for the same testing action. For a cancelled result, the employee could be required to submit an alternate specimen on a re-collection; and |
[D] You maintain no individually identifiable record that the employee had a confirmed laboratory positive, adulterated, or substituted test result (i.e., you maintain a record of the test only as a negative or cancelled test). |
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(d) The Administrator of the concerned DOT agency, or his or her designee, may grant a waiver request only if he or she determines that, in the context of your organization, there is a high probability that the procedures you propose will effectively enhance safety and protect the interests of employees in fairness and confidentiality. (1) The Administrator, or his or her designee, may impose any conditions he or she deems appropriate on the grant of a waiver. |
(2) The Administrator, or his or her designee, may immediately suspend or revoke the waiver if he or she determines that you have failed to protect effectively the interests of employees in fairness and confidentiality, that you have failed to comply with the requirements of this section, or that you have failed to comply with any other conditions the DOT agency has attached to the waiver. |
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(e) You must not stand employees down in the absence of a waiver, or inconsistent with the terms of your waiver. If you do, you are in violation of this part and DOT agency drug testing regulations, and you are subject to enforcement action by the DOT agency just as you are for other violations of this part and DOT agency rules. |
§40.21 — DOT Regulatory Guidance Question 1: Does an employer need a stand-down waiver in order to implement a policy that requires employees to cease performing safety-sensitive functions following a reasonable suspicion or post-accident test? Guidance: §40.21 requires an employer to obtain a waiver to do one very specific thing: remove employees from performance of safety-sensitive functions on the basis of the report of confirmed laboratory test results that have not yet been verified by the MRO. An employer does not need a §40.21 waiver to take other actions involving the performance of safety-sensitive functions. For example, an employer could (if it is not prohibited by DOT agency regulations and it is consistent with applicable labor-management agreements) have a company policy saying that, on the basis of an event (e.g., the occurrence of an accident that requires a DOT post-accident test, the finding of reasonable suspicion that leads to a DOT reasonable suspicion test), the employee would immediately stop performing safety-sensitive functions. Such a policy, which is not triggered by the MRO's receipt of a confirmed laboratory test result, would not require a §40.21 waiver. It would not be appropriate for an employer to remove employees from performance of safety-sensitive functions pending the result of a random or follow-up test, since there is no triggering event to which the action could rationally be tied.
Question 2: Can union hiring halls, driver-leasing companies, and other entities have a stand-down policy, or is the ability to obtain a waiver for this purpose limited to actual employers? Guidance: The rule permits "employers" to apply for a stand-down waiver. It does not permit any other entity to do so. Only entities that are viewed as "employers" for purposes of DOT agency drug and alcohol testing regulations can apply for stand-down waivers. If a DOT agency rule provides that hiring halls, leasing agencies, etc. are treated as employers, such organizations could apply for a stand-down waiver.
Question 3: If an employee fails to provide a sufficient amount of urine during an observed collection, can an employer remove the employee from performing safety-sensitive functions pending receipt of the verified result from the Medical Review Officer (MRO)? Guidance: The Department believes an employee's failing to provide a sufficient amount of urine during a directly observed collection is very similar to a laboratory's reporting a positive, adulterated, or substituted test result to MRO. While we do not believe it is appropriate for an employer to remove the employee from safety-sensitive duties until receiving the MRO's verified result, we think stand-down waiver provisions could be relevant. Therefore, employers can apply for a stand-down waiver that would permit the employee to be removed from safety-sensitive duties when he or she does not provide an adequate amount of urine during an observed collection. The waiver request would need to meet all criteria outlined at §40.21 and should reference the fact that it is for standing an employee down who fails to provide an adequate amount of urine during an observed collection. The §40.21 waiver request for laboratory positive, adulterated, and substituted results will continue to be evaluated separately.
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