What Is a DOT Stand-Down Waiver, and When Can an Employer Use One?

A stand-down waiver is DOT agency permission to stand down employees before MRO verification, and without one, stand-down is prohibited. 49 CFR 40.3 defines stand-down as temporarily removing an employee from safety-sensitive functions based only on a laboratory report to the MRO of a confirmed positive, adulterated or substituted test, before the MRO has completed verification. Under 49 CFR 40.21(a), employers are prohibited from standing employees down "except consistent with a waiver a DOT agency grants under this section."

An employer may ask for a waiver from the DOT agency whose testing rules apply to the majority of its covered employees. Under 40.21(c), the request must include, at a minimum, the employer's basis for finding that stand-down is necessary for safety, data on confirmed laboratory and MRO-verified results for the two preceding calendar years, information about the work situation of the employees subject to stand-down, a statement of which DOT agencies regulate its employees, and a proposed written stand-down policy.

Among other elements, the policy must limit information about the result to the employee, the MRO and the DER, treat all covered employees in a job category the same way, and apply only to the actual performance of safety-sensitive duties. The employer must not take action that adversely affects the employee's pay and benefits during verification, and the stand-down may not exceed five days unless the MRO states in writing that more time is needed. If the MRO verifies the test negative or cancels it, the employee returns to safety-sensitive duties immediately, suffers no adverse personnel or financial consequences, and the employer keeps no individually identifiable record of the laboratory result.

Under 40.21(e), standing employees down without a waiver, or inconsistent with its terms, is a violation subject to DOT agency enforcement action. A separate rule applies when an employee cannot be reached. Under 49 CFR 40.131(d)(2), a DER who has made all reasonable efforts to contact the employee for the MRO without success may place the employee on temporary medically unqualified status or medical leave.

MRO contact with the employee is covered in Why Does an MRO Contact an Employee after a DOT Drug Test?, and MRO reporting deadlines in How Long Does an MRO Take to Report DOT Drug Test Results?. For motor carriers, Learn Laws® offers FMCSA Designated Employer Representative Training.

TPAs and MROs are separate categories in the MyDrugTesting.com directory, so each can be searched on its own.