Editorial Note on Part 40
Editorial Note: Nomenclature changes to part 40 appear at 73 FR 33329, June 12, 2008.

§ 40.23 What actions do employers take after receiving verified test results? ( a ) As an employer who receives a verified positive drug test result, you must immediately remove the employee involved from performing safety-sensitive functions. You must take this action upon receiving the initial report of the verified positive test result. Do not wait to receive the written report or the result of a split specimen test.
( b ) As an employer who receives a verified adulterated or substituted drug test result, you must consider this a refusal to test and immediately remove the employee involved from performing safety-sensitive functions. You must take this action on receiving the initial report of the verified adulterated or substituted test result. Do not wait to receive the written report or the result of a split specimen test.
( c ) As an employer who receives an alcohol test result of 0.04 or higher, you must immediately remove the employee involved from performing safety-sensitive functions. If you receive an alcohol test result of 0.02-0.039, you must temporarily remove the employee involved from performing safety-sensitive functions, as provided in applicable DOT agency regulations. Do not wait to receive the written report of the result of the test.
( d ) As an employer, when an employee has a verified positive, adulterated, or substituted test result, or has otherwise violated a DOT agency drug and alcohol regulation, you must not return the employee to the performance of safety-sensitive functions until or unless the employee successfully completes the return-to-duty process of Subpart O of this part.
( e ) As an employer who receives a drug test result indicating that the employee's specimen was dilute, take action as provided in § 40.197.
( f ) As an employer who receives a drug test result indicating that the employee's test was cancelled because it was invalid and that a second collection must take place under direct observation— ( 1 ) You must immediately direct the employee to provide a new specimen under direct observation (either an oral fluid specimen or a urine specimen under direct observation).
( 2 ) You must not attach consequences to the finding that the test was invalid other than collecting a new specimen under direct observation.
( 3 ) You must not give any advance notice of this test requirement to the employee.
( 4 ) You must instruct the collector to note on the CCF the same reason (*e.g.,* random test, post-accident test) and DOT Agency (e.g., check DOT and FMCSA) as for the original collection.
( 5 ) You must ensure that the collector conducts the collection under direct observation (either an oral fluid specimen or a urine specimen under direct observation).
( g ) As an employer who receives a cancelled test result when a negative result is required (*e.g.,* pre-employment, return-to-duty, or follow-up test), you must direct the employee to provide another specimen immediately.
( h ) As an employer, you may also be required to take additional actions required by DOT agency regulations (*e.g.,* FAA rules require some positive drug tests to be reported to the Federal Air Surgeon).
( i ) As an employer, you must not alter a drug or alcohol test result transmitted to you by an MRO, BAT, or C/TPA.
[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27637, May 2, 2023]