**Subpart Q - Roles and Responsibilities of Service Agents**

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

As a service agent, you are subject to the following limitations
concerning your activities in the DOT drug and alcohol testing program.

\(a\) You must not require an employee to sign a consent, release,
waiver of liability, or indemnification agreement with respect to any
part of the drug or alcohol testing process covered by this part
(including, but not limited to, collections, laboratory testing, MRO,
and SAP services). No one may do so on behalf of a service agent.

\(b\) You must not act as an intermediary in the transmission of drug
test results from the laboratory to the MRO. That is, the laboratory may
not send results to you, with you in turn sending them to the MRO for
verification. For example, a practice in which the laboratory transmits
results to your computer system, and you then assign the results to a
particular MRO, is not permitted.

\(c\) You must not transmit drug test results directly from the
laboratory to the employer (by electronic or other means) or to a
service agent who forwards them to the employer. All confirmed
laboratory results must be processed by the MRO before they are released
to any other party.

\(d\) You must not act as an intermediary in the transmission of alcohol
test results of 0.02 or higher from the STT or BAT to the DER.

\(e\) Except as provided in paragraph (f) of this section, you must not
act as an intermediary in the transmission of individual SAP reports to
the actual employer. That is, the SAP may not send such reports to you,
with you in turn sending them to the actual employer. However, you may
maintain individual SAP summary reports and follow-up testing plans
after they are sent to the DER, and the SAP may transmit such reports to
you simultaneously with sending them to the DER.

\(f\) As an exception to paragraph (e) of this section, you may act as
an intermediary in the transmission of SAP report from the SAP to an
owner-operator or other self-employed individual.

\(g\) Except as provided in paragraph (h) of this section, you must not
make decisions to test an employee based upon reasonable suspicion,
post-accident, return-to-duty, and follow-up determination criteria.
These are duties the actual employer cannot delegate to a C/TPA. You
may, however, provide advice and information to employers regarding
these testing issues and how the employer should schedule required
testing.

\(h\) As an exception to paragraph (g) of this section, you may make
decisions to test an employee based upon reasonable suspicion,
post-accident, return-to-duty, and follow-up determination criteria with
respect to an owner-operator or other self-employed individual.

\(i\) Except as provided in paragraph (j) of this section, you must not
make a determination that an employee has refused a drug or alcohol
test. This is a non-delegable duty of the actual employer. You may,
however, provide advice and information to employers regarding
refusal-to-test issues.

\(j\) As an exception to paragraph (i) of this section, you may make a
determination that an employee has refused a drug or alcohol test, if:

\(1\) You schedule a required test for an owner-operator or other
self-employed individual, and the individual fails to appear for the
test without a legitimate reason; or

\(2\) As an MRO, you determine that an individual has refused to test on
the basis of adulteration or substitution.

\(k\) You must not act as a DER. For example, while you may be
responsible for transmitting information to the employer about test
results, you must not act on behalf of the employer in actions to remove
employees from safety-sensitive duties.

\(l\) In transmitting documents to laboratories, you must ensure that
you send to the laboratory that conducts testing only the laboratory
copy of the CCF. You must not transmit other copies of the CCF or any
ATFs to the laboratory.

\(m\) You must not impose conditions or requirements on employers that
DOT regulations do not authorize. For example, as a C/TPA serving
employers in the pipeline or motor carrier industry, you must not
require employers to have provisions in their DOT plans that RSPA or
FMCSA regulations do not require.

\(n\) You must not intentionally delay the transmission of drug or
alcohol testing-related documents concerning actions you have performed,
because of a payment dispute or other reasons.

*[Example 1 to Paragraph (n]{.underline}):*   A laboratory that has
tested a specimen must not delay transmitting the documentation of the
test result to an MRO because of a billing or payment dispute with the
MRO or a C/TPA.

*[Example 2 to Paragraph (n]{.underline}):*   An MRO or SAP who has
interviewed an employee must not delay sending a verified test result or
SAP report to the employer because of such a dispute with the employer
or employee.

*[Example 3 to Paragraph (n]{.underline}):*   A collector who has
performed a urine specimen collection must not delay sending the drug
specimen and CCF to the laboratory because of a payment or other dispute
with the laboratory or a C/TPA.

*[Example 4 to Paragraph (n)]{.underline}:*   A BAT who has conducted an
alcohol test must not delay sending test result information to an
employer or C/TPA because of a payment or other dispute with the
employer or C/TPA.

\(o\) While you must follow the DOT agency regulations, the actual
employer remains accountable to DOT for compliance, and your failure to
implement any aspect of the program as required in this part and other
applicable DOT agency regulations makes the employer subject to
enforcement action by the Department.

\[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001;71
FR 49384, Aug. 23, 2006\]