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

§ 40.67 When and how is a directly observed urine collection conducted? ( a ) As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if: ( 1 ) The laboratory reported to the MRO that a specimen is invalid, and the MRO reported to you that there was not an adequate medical explanation for the result;
( 2 ) The MRO reported to you that the original positive, adulterated, or substituted result had to be cancelled because the test of the split specimen could not be performed; or
( 3 ) The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as negative-dilute and that a second collection must take place under direct observation (see § 40.197(b)(1)).
( 4 ) You realize a collection under direct observation was required but was not conducted or the service agent informs you that a direct observation should have been collected but was not (*see* paragraph (n) of this section).
( b ) As an employer, you must direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.
( c ) As a collector, you must immediately conduct a collection under direct observation if: ( 1 ) You are directed by the DER to do so (see paragraph (a) of this section); or
( 2 ) You observed materials brought to the collection site or the employee's conduct clearly indicates an attempt to tamper with a specimen (see §§ 40.61(f)(5)(i) and 40.63(e)); or
( 3 ) The temperature on the original specimen was out of range (*see* § 40.65(b)(5));
( 4 ) The original specimen appeared to have been tampered with (*see* § 40.65(c)(1)); or
( 5 ) The test reason is return-to-duty or follow-up.
( d ) ( 1 ) As the employer, you must explain to the employee the reason for a directly observed collection under paragraph (a) or (b) of this section.
( 2 ) As the collector, you must explain to the employee the reason, if known, under this part for a directly observed collection.
( e ) As the collector, you must complete a new CCF for the directly observed collection. ( 1 ) You must mark the “reason for test” block (Step 1) the same as for the first collection.
( 2 ) You must check the “Observed, (Enter Remark)” box and enter the reason (see paragraphs (c)(2) through (4) of this section) in the “Remarks” line (Step 2).
( f ) In a case where two sets of specimens are being sent to the laboratory because of suspected tampering with the specimen at the collection site, enter on the “Remarks” line of the CCF (Step 2) for each specimen a notation to this effect (*e.g.,* collection 1 of 2, or 2 of 2) and the specimen ID number of the other specimen.
( g ) As the collector, you must ensure that the observer is the same gender as the employee. ( 1 ) You must never permit an opposite gender person to act as the observer.
( 2 ) The observer can be a different person from the collector and need not be a qualified collector.
( 3 ) If a same gender collector cannot be found or in circumstances of nonbinary or transgender employees: ( i ) If the employer has a standing order to allow oral fluid testing in such situations, the collector will follow that order;
( ii ) If there is no standing order from the employer, the collector must contact the DER and either conduct an oral fluid test if the collection site is able to do so, or send the employee to a collection site acceptable to the employer for the oral fluid test.
( h ) As the collector, if someone else is to observe the collection (*e.g.,* in order to ensure a same gender observer), you must verbally instruct that person to follow procedures at paragraphs (i) and (j) of this section. If you, the collector, are the observer, you too must follow these procedures.
( i ) As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.
( j ) As the observer, you must watch the employee urinate into the collection container. Specifically, you are to watch the urine go from the employee's body into the collection container.
( k ) As the observer but not the collector, you must not take the collection container from the employee, but you must observe the specimen as the employee takes it to the collector.
( l ) As the collector, when someone else has acted as the observer, you must include the observer's name in the “Remarks” line of the CCF (Step 2).
( m ) As the employee, if you decline to allow a directly observed collection required or permitted under this section to occur, this is a refusal to test.
( n ) As a service agent, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.
[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 68 FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35970, June 25, 2008; 73 FR 50223, Aug. 26, 2008; 73 FR 62910, Oct. 22, 2008; 73 FR 70284, Nov. 20, 2008; 74 FR 37952, July 30, 2009; 82 FR 52244, Nov. 13, 2017; 88 FR 27641, May 2, 2023]