DOT Rule 49 CFR Part 40 Section 40.193 Q&A
§40.73; §40.193 09/01
What is the preferred method for the collector to get the MRO copy of the CCF to the MRO?
• The promptness of reporting suffers when the mail is used to convey the MRO copy from the collection site.
• Even though we permit other means (e.g., overnight courier service) of transmitting MRO copies from the collection site to the MRO, collectors should fax the MRO copies when possible.
• If the faxed copy is not legible, the MRO must request another faxed copy or a hard copy.
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)?
• 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).
Generally, only one collector is supposed to supervise a collection for an employee. However, given the time span involved, it is possible that two collectors could be involved in a shy bladder collection (e.g., because of a shift change during the three-hour period between the first and second collection attempts). How should this be handled?
• In this situation, it is permissible for one collector to turn the process over to another collector to complete the collection.
• The first collector would document the start time for the 3-hour period. The second would provide his or her name and signature after the second collection, as the collector of record. The Remarks line (Step 2 of the CCF) would be used to document the transition (including the first collector’s name and the start time for the shy bladder procedure).
Do the five days within which an employee is given to obtain a medical evaluation after providing an insufficient amount of urine or breath include holidays and weekends, or does this refer to five business days?
• The five-day limit for obtaining an examination by a licensed physician refers to business days.
• Therefore, holidays and weekend days should not be included in the 5-day time frame.
Are there any circumstances for which an employee should be given more than 3 hours and 40 ounces of fluids to provide a sufficient amount of urine during a collection?
• No. The Department sees no situations for which an employee should be given more than 3 hours and offered more than 40 ounces of fluids to provide a sufficient amount of urine after the “first unsuccessful attempt” to do so [see §40.193(b)(4)
• The Department regards the “first unsuccessful attempt” to be very first time the employee comes out of the urination area with less than 45 mL of urine.
• This is true about the “first unsuccessful attempt” even if a subsequent attempt during the three-hour period requires an immediate collection under direct observation because the specimen is outside the appropriate temperature range or shows signs of tampering [see §40.65(b)&(c)
• For example: An employee presents an insufficient amount of urine at noon and is urged by the collector to drink up to 40 ounces of fluid distributed through a period of up to 3 hours (3 o’clock, in this example).
-- At 2 o’clock, the employee indicates that he or she can now provide the specimen, enters the collection area, but returns with a specimen outside the acceptable temperature range.
-- The collector immediately conducts an observed collection, but the employee – for the second time during this collection event, which began at noon – provides less than 45 mL of urine.
-- The employee has up to 3 o’clock and any remaining fluids to provide an adequate amount of urine under direct observation: The employee is not given an additional three hours and is not offered an additional 40 ounces of fluids.
-- If the employee ultimately fails to provide a sufficient amount of urine during the remaining time, the collector discontinues the collection, discards any specimen the employee previously provided, appropriately documents the CCF, and immediately notifies the DER and the MRO – following the requirements at §40.193(b)(4) and (b)(5)
Must a test result be cancelled by the MRO when it is discovered the employee did not have a full three hours to provide a sufficient amount of urine?
• Not affording the employee a full three hours to provide a specimen is not automatically a basis for the MRO to cancel a test.
• The three hour time period is a maximum rather a minimum. But, to avoid potential issues about the fairness of the collection, collectors are advised to provide the full three hours.
• In each of the following examples, the collector could stop the collection process, thoroughly document the details and times on Copy 2 of the CCF, and inform the DER of the employee’s inability to provide a sufficient amount of urine:
-- After 2 hours and 50 minutes, the employee informs the collector there is no reason to try again because he or she will not be able to provide a specimen. The collector terminates the collection.
-- After 2 hours and 50 minutes, the employee requests to try again but provides another insufficient amount of urine. The collector terminates the collection because there is no practical possibility that the employee will provide the requisite amount in the next 10 minutes.
• In each of these two examples, the employee has had a fair opportunity to provide 45 mL of urine, and the test should not be cancelled because the full three-hour period was not used.
• The medical evaluation should be conducted to determine if there is a legitimate physiological condition or psychological disorder explanation for the employee’s inability to provide the requisite amount of urine.
• In situations where it appears the employee was not provided a fair opportunity to provide the requisite amount of urine, the MRO could cancel the test.
-- For example, the collector terminates a collection after two hours because the collection site is closing and all collectors are leaving.
• Please note that it remains a refusal to test if the employee leaves the collection site without permission.
§§ 40.73; 40.191; 40.193; 40.333; 40.355(i) 07/14
When may a collector give an employee permission to leave a collection site?
- 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
What happens if an employee leaves the collection site prior to the completion of the testing process?
- 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.
Last updated: Thursday, May 12, 2016