Can a Motor Carrier Remove a Driver before the MRO Verifies a Drug Test Result?

When a laboratory confirms a positive result, the laboratory reports it to the Medical Review Officer before anyone at the company learns of it. Some employers want to pull the employee from duty as soon as the lab reports, before the MRO finishes. Part 40 calls this a stand-down, and 49 CFR 40.21 prohibits it unless a DOT agency grants a waiver. For a motor carrier, the agency is FMCSA.

The general rule. An employer is prohibited from standing employees down, except under a waiver granted by the concerned DOT agency (49 CFR 40.21(a)). The concerned agency is the one whose testing rules cover the majority of the employer's covered employees, and it coordinates with other DOT agencies that regulate the employer (49 CFR 40.21(b)).

What a waiver request contains. The request includes the employer's reasons why a stand-down is necessary for safety, data on safety problems a stand-down could have prevented, and two calendar years of data on confirmed laboratory positive, adulterated and substituted results and how many the MRO verified (49 CFR 40.21(c)(1)). It also describes the work units involved and which DOT agencies regulate the employees.

What the stand-down policy must promise. The proposed written policy must provide for the following (49 CFR 40.21(c)(2)):

• Distribution of the policy to the employees it covers
• Confidentiality, so only the employee, the MRO and the DER know of the confirmed lab result
• Equal treatment of covered employees in the same job category
• Removal only from the actual performance of safety-sensitive duties
• No effect on pay and benefits while the MRO verifies
• A stand-down of no more than five days, unless the MRO informs the employer in writing that more time is needed
• If the MRO verifies the test as negative or cancels it, immediate return to duty, no adverse consequences, and no individually identifiable record of the lab result

Approval standard. The Administrator grants a waiver only if the procedures have a high probability of enhancing safety while protecting employees' interests in fairness and confidentiality, and may attach conditions or revoke the waiver (49 CFR 40.21(d)).

Without a waiver. An employer that stands down an employee without a waiver, or outside its terms, violates Part 40 and the DOT agency rules and faces enforcement (49 CFR 40.21(e)).

What is allowed. Once the MRO verifies a positive result, removal is required at once (49 CFR 40.23(a)). Clear DER duties and a written drug and alcohol policy help supervisors tell the two situations apart.