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DOT Rule 49 CFR Part 40 Section 40.191 Q&A


§40.191; §40.193                                                    09/01

QUESTION:

Do collectors sign the CCF in situations in which a urine specimen is not provided during a collection (i.e., a refusal to provide a specimen; a shy bladder situation)?

ANSWER:

• In any such case, the collector would check the box in Step 2 of the CCF indicating that no specimen was provided and enter an explanatory remark.

• The collector would then provide his or her name and signature in Step 4 of the CCF.

• The employee’s name and phone number should be included on the MRO copy.

• The collector would then transmit the CCF copies to the appropriate parties (e.g., employer, MRO).


40.191                                                                       07/06

QUESTION:

What are some examples of an employee’s failure to cooperate with the testing process that would cause a refusal to test and how should the collector handle them?

ANSWER:

• Part 40 highlights two examples of failure to cooperate – the employee refuses to empty pockets when instructed to do so; and the employee behaves in a confrontational way that disrupts the testing process.

• Among others are:

-- The employee fails to wash his or her hands after being directed to do so by the collector.

-- The employee admits to the collector that he or she adulterated or substituted the specimen; and

-- The employee is found to have a device – such as a prosthetic appliance

– the purpose of which is to interfere with providing an actual urine specimen.

• When the issue is a problem with refusing to following instructions – for example, refusing to empty pockets or refusing to wash hands – or if there is a confrontation, the collector should warn the employee of potential consequences of a failure to cooperate; and if practical, seek assistance from the DER or supervisor to ensure that the employee understands the ramifications.

• When the issue is admission of adulteration or substitution or when a device is found, there is no need for the collector to warn the employee or to seek  assistance from the DER or supervisor.

• In every case, the collector must carefully follow the procedures at 40.191(d) by terminating the collection process, immediately notifying the DER of the refusal, and thoroughly documenting the circumstances surrounding the event in the remarks section of the CCF.

• Any specimen that had been collected before the refusal should be discarded.


§§ 40.73; 40.191; 40.193; 40.333; 40.355(i)                     07/14

QUESTION:

When may a collector give an employee permission to leave a collection site?

ANSWER:

  • A collector may give an employee permission to leave the collection site only after the testing process is complete.
  • For tests conducted under §40.73, the testing process is complete when both the employee and the collector complete the chain of custody form in the order specified in §40.73(a)(1)-(6). At that time, the collector must advise the employee that he or she may leave the collection site.
  • For tests conducted under §40.193, the testing process is complete only after the employee has provided a sufficient specimen and the steps in §40.73(a)(1)-(6) are complete, or the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide a specimen.
  • There is no requirement for a collector to inform an employee that the failure to remain at the collection site is a refusal. Therefore, if the collector does not inform an employee that failure to remain at the collection site is a refusal, it does not mean that the collector has given the employee permission to leave the collection site. If an employee leaves prior to the completion of the testing process, the employer must decide whether the employee’s actions constitute a refusal.

§§ 40.73; 40.191; 40.193; 40.333; 40.355(i)                         07/14

QUESTION:

What happens if an employee leaves the collection site prior to the completion of the testing process?

ANSWER:

  • As noted in §40.191(a)(2), failure to remain at the collection site until the testing process is complete generally constitutes a refusal to test.
  • If an employee leaves the collection facility prior to the testing process being completed, the collector must inform the employer as required under §40.191(d). The employer, as required under §40.355(i), must then determine whether the employee’s actions constitute a refusal to test. To make this determination, the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the employee (i.e., in the event of a medical emergency, copies of hospital admission records/EMS records/police records, etc).
  • The employer must document its decision, and the solid reasoning for the decision, in all collection site refusal determinations. Copies of these decisions, and the information relied on in making those decisions, must be maintained in accordance with §40.333 and the applicable modal recordkeeping requirements. If during the course of an inspection, the DOT determines that you have not properly documented these determinations, you may be subject to penalty in accordance with these regulations.
Updated: Wednesday, January 18, 2017
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