**Subpart B - Employer Responsibilities**

**§ 40.21   May an employer stand down an employee before the MRO has
completed the verification process?**

\(a\) As an employer, you are prohibited from standing employees down,
except consistent with a waiver a DOT agency grants under this section.

\(b\) You may make a request to the concerned DOT agency for a waiver
from the prohibition of paragraph (a) of this section. Such a waiver, if
granted, permits you to stand an employee down following the MRO\'s
receipt of a laboratory report of a confirmed positive test for a drug
or drug metabolite, an adulterated test, or a substituted test
pertaining to the employee.

\(1\) For this purpose, the concerned DOT agency is the one whose drug
and alcohol testing rules apply to the majority of the covered employees
in your organization. The concerned DOT agency uses its applicable
procedures for considering requests for waivers.

\(2\) Before taking action on a waiver request, the concerned DOT agency
coordinates with other DOT agencies that regulate the employer\'s other
covered employees.

\(3\) The concerned DOT agency provides a written response to each
employer that petitions for a waiver, setting forth the reasons for the
agency\'s decision on the waiver request.

\(c\) Your request for a waiver must include, as a minimum, the
following elements:

\(1\) Information about your organization:

\(i\) Your determination that standing employees down is necessary for
safety in your organization and a statement of your basis for it,
including any data on safety problems or incidents that could have been
prevented if a stand-down procedure had been in place;

\(ii\) Data showing the number of confirmed laboratory positive,
adulterated, and substituted test results for your employees over the
two calendar years preceding your waiver request, and the number and
percentage of those test results that were verified positive,
adulterated, or substituted by the MRO;

\(iii\) Information about the work situation of the employees subject to
stand-down, including a description of the size and organization of the
unit(s) in which the employees work, the process through which employees
will be informed of the stand-down, whether there is an in-house MRO,
and whether your organization has a medical disqualification or
stand-down policy for employees in situations other than drug and
alcohol testing; and

\(iv\) A statement of which DOT agencies regulate your employees.

\(2\) Your proposed written company policy concerning stand-down, which
must include the following elements:

\(i\) Your assurance that you will distribute copies of your written
policy to all employees that it covers;

\(ii\) Your means of ensuring that no information about the confirmed
positive, adulterated, or substituted test result or the reason for the
employee\'s temporary removal from performance of safety-sensitive
functions becomes available, directly or indirectly, to anyone in your
organization (or subsequently to another employer) other than the
employee, the MRO and the DER;

\(iii\) Your means of ensuring that all covered employees in a
particular job category in your organization are treated the same way
with respect to stand-down;

\(iv\) Your means of ensuring that a covered employee will be subject to
stand-down only with respect to the actual performance of
safety-sensitive duties;

\(v\) Your means of ensuring that you will not take any action adversely
affecting the employee\'s pay and benefits pending the completion of the
MRO\'s verification process. This includes continuing to pay the
employee during the period of the stand-down in the same way you would
have paid him or her had he or she not been stood down;

\(vi\) Your means of ensuring that the verification process will
commence no later than the time an employee is temporarily removed from
the performance of safety-sensitive functions and that the period of
stand-down for any employee will not exceed five days, unless you are
informed in writing by the MRO that a longer period is needed to
complete the verification process; and

\(vii\) Your means of ensuring that, in the event that the MRO verifies
the test negative or cancels it---

\(A\) You return the employee immediately to the performance of
safety-sensitive duties;

\(B\) The employee suffers no adverse personnel or financial
consequences as a result; and

\(C\) You maintain no individually identifiable record that the employee
had a confirmed laboratory positive, adulterated, or substituted test
result (i.e., you maintain a record of the test only as a negative or
cancelled test).

\(d\) The Administrator of the concerned DOT agency, or his or her
designee, may grant a waiver request only if he or she determines that,
in the context of your organization, there is a high probability that
the procedures you propose will effectively enhance safety and protect
the interests of employees in fairness and confidentiality.

\(1\) The Administrator, or his or her designee, may impose any
conditions he or she deems appropriate on the grant of a waiver.

\(2\) The Administrator, or his or her designee, may immediately suspend
or revoke the waiver if he or she determines that you have failed to
protect effectively the interests of employees in fairness and
confidentiality, that you have failed to comply with the requirements of
this section, or that you have failed to comply with any other
conditions the DOT agency has attached to the waiver.

\(e\) You must not stand employees down in the absence of a waiver, or
inconsistent with the terms of your waiver. If you do, you are in
violation of this part and DOT agency drug testing regulations, and you
are subject to enforcement action by the DOT agency just as you are for
other violations of this part and DOT agency rules.