 |
§40.149 — May the MRO change a verified drug test result? (a) As the MRO, you may change a verified test result only in the following situations: (1) When you have reopened a verification that was done without an interview with an employee (see §40.133(d)). |
(2) If you receive information, not available to you at the time of the original verification, demonstrating that the laboratory made an error in identifying (e.g., a paperwork mistake) or testing (e.g., a false positive or negative) the employee's primary or split specimen. For example, suppose the laboratory originally reported a positive test result for Employee X and a negative result for Employee Y. You verified the test results as reported to you. Then the laboratory notifies you that it mixed up the two test results, and X was really negative and Y was really positive. You would change X's test result from positive to negative and contact Y to conduct a verification interview. |
(3) If, within 60 days of the original verification decision — (i) You receive information that could not reasonably have been provided to you at the time of the decision demonstrating that there is a legitimate medical explanation for the presence of drug(s)/metabolite(s) in the employee's specimen; or |
(ii) You receive credible new or additional evidence that a legitimate medical explanation for an adulterated or substituted result exists. |
If the employee's physician provides you a valid prescription that he or she failed to find at the time of the original verification, you may change the test result from positive to negative if you conclude that the prescription provides a legitimate medical explanation for the drug(s)/ metabolite(s) in the employee's specimen. |
(4) If you receive the information in paragraph (a)(3) of this section after the 60-day period, you must consult with ODAPC prior to changing the result. |
(5) When you have made an administrative error and reported an incorrect result. |
|
(b) If you change the result, you must immediately notify the DER in writing, as provided in §§40.163-40.165. |
(c) You are the only person permitted to change a verified test result, such as a verified positive test result or a determination that an individual has refused to test because of adulteration or substitution. This is because, as the MRO, you have the sole authority under this part to make medical determinations leading to a verified test (e.g., a determination that there was or was not a legitimate medical explanation for a laboratory test result). For example, an arbitrator is not permitted to overturn the medical judgment of the MRO that the employee failed to present a legitimate medical explanation for a positive, adulterated, or substituted test result of his or her specimen. |
[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 FR 35971, June 25, 2008] §40.149 — DOT Regulatory Guidance Question 1: Can arbitrators change or overturn the MRO's determination about the verification of a test result? Guidance: No. The MRO is the only person authorized to change a verified test result (see §40.149(c)). The MRO can do so with respect to a verification decision he or she has made, in the circumstances described in §40.149. An arbitrator is someone who derives his authority from the employer, or from a labor-management agreement. The arbitrator cannot exercise authority that the employer could not exercise on its own. The arbitrator could not overturn a decision of the MRO concerning a test verification any more than the employer could on its own. This prohibition applies to substantive decisions the MRO makes about the merits of a test (e.g., with respect to whether there is a legitimate medical explanation for a positive, adulterated, or substituted test result or whether a medical condition precluded an individual from providing a sufficient specimen). An arbitrator could determine that a test result should be cancelled because of a defect in the drug testing process involving the MRO (e.g., that the MRO failed to afford the employee the opportunity for a verification interview). But an arbitrator could not overturn the substantive judgment of the MRO about whether, for example, the information submitted by the employee constituted a legitimate medical explanation.
Question 2: What is an employer to do if an arbitrator's decision claims to overturn the result of a DOT drug or alcohol test on grounds contrary to DOT regulations? Guidance: There could be instances in which an arbitrator makes a decision that purports to cancel a DOT test for reasons that the DOT regulation does not recognize as valid. For example, the arbitrator might make a decision based on disagreement with an MRO's judgment about a legitimate medical explanation (see §40.149) or on the basis of a procedural error that is not sufficient to cancel a test (see §40.209). Such a test result remains valid under DOT regulations, notwithstanding the arbitrator's decision. Consequently, as a matter of Federal safety regulation, the employer must not return the employee to the performance of safety-sensitive functions until the employee has completed the return to duty process. The employer may still be bound to implement the personnel policy outcome of the arbitrator's decision in such a case. This can result in hardship for the employer (e.g., being required to pay an individual at the same time as the Department's rules prevent the individual from performing the duties of his job).
|