Under 49 CFR 40.355(g), a C/TPA must not decide to test an employee based on reasonable suspicion, post-accident, return-to-duty or follow-up criteria, except for an owner-operator or other self-employed individual under 40.355(h). The rule calls these "duties the actual employer cannot delegate to a C/TPA." A C/TPA may give employers advice and information on these testing issues and on how to schedule required tests.
Under 40.355(i), a C/TPA must not determine that an employee has refused a drug or alcohol test, which the rule calls "a non-delegable duty of the actual employer." The C/TPA may advise employers on refusal-to-test issues. Section 40.355(j) allows two exceptions. A C/TPA that schedules a required test for an owner-operator or other self-employed individual may determine a refusal when the individual fails to appear without a legitimate reason, and an MRO may determine a refusal based on adulteration or substitution.
Other limits in 40.355 bar a service agent from sending laboratory drug test results to the MRO as an intermediary, from passing laboratory results directly to the employer before MRO review, and from passing alcohol results of 0.02 or higher from the technician to the DER. A service agent also must not require an employee to sign a consent, release or waiver for any part of the testing process, and must not impose conditions on employers that DOT regulations do not authorize.
Refusals are covered in What Counts as Refusing a DOT Drug Test?, and who can receive an employee's results is covered in Who Can Receive an Employee's DOT Drug Test Results?.
MROs, SAPs, collection sites and other drug testing service providers are listed alongside TPAs in the MyDrugTesting.com directory.
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