49 CFR Part 40 is Revised

49 CFR Part 40 is revised effective September 22, 2006

[Federal Register: August 23, 2006 (Volume 71, Number 163)]
[Rules and Regulations][Page 49382-49384]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov][DOCID:fr23au06-23]
For Further Information Contact:
Bohdan Baczara, ODAPC, 400 7th St SW, Washington DC 20590
202-366-3784 (voice), 202-366-3897 (fax), or
bohdan.baczara@dot.gov (e-mail)

Link to {49 CFR Part 40  20060922} to print out the regulations (90 pages) to update Section 5 of your DS+ Model Program.  Do not discard the previous version of the regulations…you must keep them for 5 years (see your Model Program, Section 4, p-2, Retention of Records, Period of Retention 5 years).

Summary of Revised Regulations

NOTE: Item #3 is a SIGNIFICANT CHANGE and an ACTION REQUIRED item!

(1) Technical amendments regarding incorrect references and typos;

(2) State-licensed or certified marriage and family therapists will be permitted to provide Substance Abuse Professional (SAP) services; and

(3) A substantive amendment to “Refusal to Test” regulations (49 CFR 40.191).

This 3rd item revises 40.191(a)(7) to the effect that, if the employer has not made a contingent offer of employment, a failure “to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under Sec 40.193(d)” is not a refusal to test.  Instead, the regulation is revised to add: “If there was no contingent offer of employment, the MRO will cancel the test”.  

Important issues to consider regarding this “refusal to test” revision:

First, for many years, Drug Screens Plus has consistently advised that we believe a DOT-regulated pre-employment drug test should only be performed subsequent to a conditional offer of employment.  Although the DOT has taken steps to clarify that a DOT drug/alcohol test is “not a medical exam” with respect to HIPAA (e.g., “preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care or the past, present, or future physical or mental health or condition of an individual”), ADA (Americans with Disabilities Act) and similar state laws and regulations may consider drug tests to be “medical exams” if the services of an MRO are used or if “medical questions” are asked in connection with the test (e.g., in exactly such medical exams as indicated in the regulation).

Second. If you don’t establish that your company’s DOT pre-employment drug tests are required only after a contingent offer of employment, there are some potentially bad consequences that could result from this change:

(a) Any applicant who decides during the course of a pre-employment drug test (even after testing commences) that s/he doesn’t want to continue with the test (e.g., the applicant is afraid that on that particular day s/he would not “pass” the drug test, and/or who provided a cold {substituted} specimen and didn’t want to provide a valid specimen) could simply fail to provide a specimen and refuse/fail to submit to the required medical exam.  The applicant would not be deemed to have “refused to test” (official test result = “Cancelled”) and could continue the application process for the (safety-sensitive) position with your company.  

(b) An opiate-abusing applicant taking a pre-employment drug test without a contingent offer of employment, testing “lab positive”, and reaching the MRO evaluation stage requiring an examination for “clinical evidence of substance abuse” can simply refuse/fail to report for the medical examination; the test result will be “Cancelled”.  That applicant could report for a “new” pre-employment test and test “negative” because the “window of detection” for morphine and codeine in the DOT test (at 2000 ng/ml) is only 1-2 days.

Third. Initiating DOT-regulated pre-employment drug testing only after making a contingent offer of employment will help your company properly identify applicants (more likely to be drug users) who have “refused a drug test”.  Failure to take reasonable steps (e.g., simply conducting the drug test after vs before a contingent offer of employment) to identify such individuals could be cited as evidence of “negligence” in cases where the employee subsequently injures or kills someone and is found to have been a substance abuser (similar to the $1,000,000 settlement in a lawsuit mentioned {here} involving a driver “who the company should have known was medically unqualified.” 

Consequently, rather than helping to “clean up” the pool of DOT-regulated employees, this change in Part 40 regs will only make it easier for drug users to move from one company to the next (and your company could just as easily be the one hiring the problem individual as the one passing the problem along to someone else)…unless your company (and others) maintain a policy of initiating pre-employment drug tests only after making a contingent offer of employment. 

Action Required. The employer must determine whether its pre-employment drug test is required before or after a contingent offer of employment…and you may have to prove it in a court of law, so make sure you properly document it; e.g., “This job offer is contingent upon passing the company’s DOT-required drug test; upon the accuracy, completeness and results of your Application for Employment, DOT-required job, accident, and drug/alcohol history; and upon the results of a background investigation.”  That’s just off the top of my head so, be advised: This is where you check with your attorney to make sure that your hiring process meets the requirements of your company and all state/federal laws.