What Must an Employer Do after a Verified Positive DOT Drug Test?

Employer actions after a verified result are set out in 49 CFR 40.23. On receiving a verified positive drug test result, the employer must immediately remove the employee from safety-sensitive functions. The rule states that this happens on receipt of the initial report, without waiting for the written report or the result of a split specimen test. A verified adulterated or substituted result is treated as a refusal to test, with the same immediate removal.

Under 40.23(d), the employer must not return the employee to safety-sensitive functions until the employee completes the return-to-duty process in Part 40, Subpart O. Under 49 CFR 40.287, the employer must give the employee a list of substance abuse professionals (SAPs) who are readily available and acceptable to the employer, with names, addresses and telephone numbers, at no charge.

For CDL drivers, 49 CFR 382.501 bars an employer from letting a driver who has violated the rules perform safety-sensitive functions. Under 49 CFR 382.705(a), the MRO reports a verified positive result to the FMCSA Drug and Alcohol Clearinghouse within 2 business days of the verification.

The employee may ask the MRO for a test of the split specimen. The SAP evaluation is the next step toward a return to safety-sensitive work, and SAPs are listed in the MyDrugTesting.com directory.

Sources: 49 CFR 40.23, 49 CFR 40.287, 49 CFR 382.501, 49 CFR 382.705