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Several new provisions were introduced in the U.S. Department of Transportation (DOT) revised drug and alcohol testing rule (49 CFR Part 40) that was published on December 19, 2000 (See Issue 17 of the Updates). One provision that has resulted in confusion and misunderstanding within the transit industry is the introduction of stand-down waivers. The term “stand-down” refers to an employer practice of temporarily removing an employee from the performance of safety-sensitive duties upon learning that the individual had a confirmed laboratory positive drug test, but before the MRO has completed the verification process.
Stand-downs have always been prohibited under the DOT regulations and continue to be so under the new rules. MROs are not permitted to inform employers of a laboratory positive test until the MRO has determined if there  is a legitimate medical explanation for the test result and verified the test as either positive or negative. The preamble to the rule explains that standing-down the employee before the MRO verification process is complete is premature, could be considered to undercut the rationale for the MRO review, has the potential to compromise confidentiality and may result in unfair stigmatization of the employee as a drug user.
Recognizing, however, that some employers advocate stand-downs as a means to enhance safety and reduce liability, the new rule (Section 40.21) includes a mechanism for employers, on a case-by-case basis, to seek waivers if certain conditions are met. Specifically, the employer must have a well-founded stand-down plan that effectively protects the interests of the employees including confidentiality and must be based on a sound factual basis that represents a genuine and plausible safety concern. The FTA anticipates
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that few transit employers will be able to meet the stringent requirements delineated in the waiver request process, and therefore, will not result in a policy or procedural change by most transit employers.
Some of the confusion about this issue has resulted from employers who have policies that require employees to be removed from service pending drug and alcohol test results following accidents and reasonable suspicion determinations. This practice is not considered a stand-down under the DOT rule, as the “incident” was the reason for the person being removed from duty not the laboratory test result. In this case the employer has no knowledge of the drug test result, only that a drug test was required.
Similarly, employers have been confused by how the stand-down prohibition relates to the practice of removing employees from duty following a non-negative test result (i.e., positive, adulterated, substituted) while awaiting the split specimen test result. Once, the MRO has completed the review process and verified a test as positive/non-negative, the employer is required to immediately remove the employee from safety-sensitive duties. The employee’s removal cannot be delayed while awaiting the split specimen result. This is not a stand-down as defined in the DOT rule as the laboratory test result has already been verified by the MRO before the employer is notified of the test result.
Under the DOT rule, the prohibition of stand-downs is narrowly defined and associated with the notification of the employer of a positive laboratory test result without MRO verification. This provision does not impede on employer’s polices that require the removal of employees from safety-sensitive duties for any other reason not specifically addressed in the regulation.
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