Can a TPA or Consortium Act as the Employer's DER?

No. Part 40 does not allow a third party administrator, consortium or other service agent to serve as an employer's designated employer representative. The rule appears twice: an employer must not permit a service agent to act as its DER (49 CFR 40.15(d)), and a service agent must not act as a DER (49 CFR 40.355(k)). The role itself is described in what a designated employer representative is.

Why the DER stays in house. Part 40 defines the DER as an employee authorized by the employer to take immediate action to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The definition adds that service agents cannot act as DERs (49 CFR 40.3). Those are employer decisions. A C/TPA may transmit result information to the employer, but it must not act for the employer in removing employees from safety-sensitive duties (49 CFR 40.355(k)).

What a C/TPA can do. An employer may use service agents for the tasks needed to comply with Part 40 and agency rules, consistent with Subpart Q (49 CFR 40.15(a)). Typical tasks include managing random pools, scheduling collections, arranging MRO and SAP services and keeping records. The TPA and C/TPA responsibilities FAQ covers these roles.

Decisions a C/TPA may not make for a typical employer.

• Decisions to test based on reasonable suspicion, post-accident, return-to-duty and follow-up criteria. These duties cannot be delegated, though the C/TPA may give advice on them (49 CFR 40.355(g)).
• Determinations that an employee refused a test. This is a non-delegable employer duty, though the C/TPA may advise (49 CFR 40.355(i)).

The owner-operator exceptions. For an owner-operator or other self-employed individual, a C/TPA may make the testing decisions listed above (49 CFR 40.355(h)). It may also determine a refusal when the owner-operator fails to appear for a scheduled test without a legitimate reason (49 CFR 40.355(j)(1)). It may pass SAP reports to the owner-operator (49 CFR 40.355(f)).

Other service agent limits relevant to DER work. A C/TPA must not stand between the laboratory and the MRO or send lab results straight to the employer, because confirmed lab results go through the MRO first (49 CFR 40.355(b) and (c)). It must not relay alcohol results of 0.02 or higher from the BAT or STT to the DER (49 CFR 40.355(d)). It must not require employees to sign consents, releases or waivers (49 CFR 40.355(a)).

Responsibility stays with the employer. The employer remains responsible for compliance even when it uses a service agent. Good faith reliance on a service agent is not a defense in a DOT enforcement action (49 CFR 40.15(c)). The duties a DER performs are covered in DER roles and responsibilities.