FTA Drug and Alcohol Regulation Updates
Issue 17, page 5

     Part 40 has been significantly restructured and divided into eighteen Subparts and six appendices. The rule uses a question-answer format, with language specifically directing particular parties to take particular actions.
     Each of the major revisions is summarized on this and the following pages. The reader should note, however, that the revisions are extensive and only the major highlights are discussed herein. Readers are strongly encouraged to read the regulatory text including the preamble and section-by-section discussion to obtain their own understanding of the regulatory requirements.

Employer Responsibilities

• All agreements and arrangements, written or unwritten, between 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 the DOT/FTA drug and alcohol testing regulations.
• As an employer, you can contract out your drug ad alcohol testing program functions, but you cannot contract away your compliance responsibilities. An employer’s good faith use of a service agent is not a defense to a DOT enforcement action.
• The regulation does not allow an employer to “stand down” an employee (temporarily remove from performing safety-related duties) while awaiting verification from a medical review officer of a laboratory confirmed positive unless the employer has received a waiver from the appropriate DOT operating administration (e.g., FTA). Procedures for obtaining a waiver (40.21) are provided. The conditions for obtaining a waiver include an important measure to continue to protect employee confidentiality and to allow an employee to be paid during this period.
• All DOT employers are required to check on the drug and alcohol testing background of new hires and other employees beginning safety-sensitive work. Employers are required to get written consent from the applicant. The employer must send the request for information and the employee’s consent to all other DOT-regulated employers for whom the employee had worked within the previous two years. The employer cannot let the employee perform safety-sensitive duties for more than 30 days unless the employer has obtained, or made and documented a good faith effort to obtain the information. If the employer finds that an employee has a violation on his record and has not completed the return-to-duty process, the employer must immediately stop using the employee to perform safety sensitive functions.
• DOT employers are required to provide the information when requested. The method for providing such information in a confidential manner is defined.
• Employers must also ask job applicants if they have previously failed or refused a DOT drug or alcohol pre-employment test within the previous two years.