§ 40.341 Must service agents comply with DOT drug and alcohol testing requirements?

(a) As a service agent, the services you provide to transportation employers must meet the requirements of this part and the DOT agency drug and alcohol testing regulations.

(b) If you do not comply, DOT may take action under the Public Interest Exclusions procedures of this part

(see Subpart R), or under applicable provisions of other DOT agency regulations.

§ 40.343 What tasks may a service agent perform for an employer?

As a service agent, you may perform tasks needed to help employers comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of this part.

§ 40.345 When may a C /TPA act as an intermediary in transmitting drug and alcohol testing information to employers?

Cross- reference: See amendment at 88 FR 27650, May 2, 2023.

(a) As a C/ TPA or other service agent, you may act as an intermediary in transmitting testing information only if the employer authorizes you to do so. Each employer decides whether to receive this information directly from the originating service agent (e. g., an MRO or BAT) or from you as an intermediary.

(b) The specific provisions under which you may act as an intermediary are listed in Appendix F. You are prohibited from acting as an intermediary in any other circumstances.

(c) When transmitting information, you must meet all applicable requirements, including confidentiality and timing. For example, if transmitting drug test results from MROs to DERs, you must do so in full compliance with § 40.167.

§ 40.347 What functions may C /TPAs perform in administering testing?

As a C/ TPA, unless otherwise specified, you may:

(a) Operate random testing programs and assist employers with other testing types (e. g., pre- employment, post- accident, reasonable suspicion, return- to- duty, and follow- up).

(b) Combine employees from multiple employers or transportation industries into a random pool if allowed by all applicable DOT regulations.

(1) When combining industries, the pool must meet the highest random testing rate required by any applicable DOT agency.

(2) Employees not subject to DOT regulations may not be included in the same random pool as DOT- regulated employees.

(c) Assist employers in ensuring follow- up testing is performed according to the SAP s plan. Neither you nor the employer may randomly select employees from a follow- up pool.

§ 40.349 What records may a service agent receive and maintain?

(a) You may receive and maintain all DOT drug and alcohol testing records, including positive, negative, and refusal results. Employee consent is not required.

(b) You may store all records necessary for program operation

(e.g., CCFs, ATFs, random pool lists, selection notices).

(c) If another service agent

(e.g., MRO, BAT) sends information to the DER, they may also send it to you as the employer s designated service agent.

(d) If acting as an intermediary, ensure the employer receives the information within the required timeframe.

(e) You must provide any records requested by the employer within two business days of a DOT agency inquiry.

(f) Upon employer request, you must promptly transfer all relevant records to the employer or another designated service agent. You cannot charge more than reasonable administrative costs and may not charge a release fee.

(g) If your organization is closing, merging, or being acquired, you must notify affected employers immediately and offer to transfer records as outlined above.

§ 40.351 What confidentiality requirements apply to service agents?

(a) You must protect confidential employee information the same way employers are required to under DOT regulations.

(b) Follow all confidentiality and records retention rules that apply to employers.

(c) Do not release individual test results to another employer without the employee s specific, written consent.

(d) Blanket consent forms are prohibited.

(e) You must implement adequate security measures (physical, digital, and procedural) to protect confidential data.

§ 40.353 What principles govern the interaction between MROs and other service agents?

(a) You may provide MRO services if you meet all applicable requirements.

(b) MROs must perform their duties independently and confidentially. You must structure this relationship to ensure these principles are maintained.

(c) Only staff directly supervised by an MRO may perform MRO functions, and only in a limited, non -subversive capacity.

(d) MROs must personally verify results and conduct employee interviews. Your staff may not perform these duties.

§ 40.355 What limitations apply to the activities of service agents?

Cross- reference: See amendment at 88 FR 27650, May 2, 2023. As a service agent, you may not:

(a) Require employees to sign consent or waiver forms for testing.

(b) Act as an intermediary between the laboratory and MRO for transmitting results.

(c) Transmit lab results directly to employers or through another service agent only MROs may do so.

(d) Transmit alcohol test results of 0.02 or greater from STTs or BATs to DERs.

(e) Intercept individual SAP reports meant for the actual employer except under limited circumstances.

(f) Exception: You may transmit SAP reports to owner -operators or self -employed individuals.

(g) Decide to test employees based on suspicion, post -accident, return -to -duty, or follow -up determinations this is the employer s responsibility.

(h) Exception: You may make such determinations for owner -operators or self -employed individuals.

(i) Determine that an employee refused a test only employers can make that call.

(j) Exception: You may determine a refusal occurred if:

(1) You scheduled a test for a self -employed individual and they failed to appear without cause.

(2) You are an MRO and determine a refusal due to adulteration or substitution.

(k) Act as a DER or take action to remove employees from safety -sensitive duties.

(l) Transmit anything other than Copy 1 of the CCF to laboratories.

(m) Impose additional requirements on employers not authorized by DOT regulations.

(n) Delay transmission of documents due to payment or other disputes. Examples: A lab may not delay MRO reporting due to billing issues. An MRO must not delay verified test results. A collector may not delay sending specimens to a lab. A BAT may not delay providing results to employers or C/ TPAs.

(o) Note: Employers are ultimately accountable. If you fail to meet your obligations, the employer may still face enforcement action by DOT.