Implementation Guidelines - Federal Transit Administration - U.S. ...

Examples of errors that require
corrective action include the following:
• The BAT/STT does not sign the
ATF;
• If the employee fails to sign Step
4 of the ATF, and the BAT/STT
neglects to note such in the
Remarks section of the ATF; and
• The BAT/STT uses a non-DOT
alcohol testing form for a DOT
test.
All “fatal” and “correctable” flaws must
be documented. No person concerned with
the testing process including the employer,
employee representative, arbitrator, etc.,
may declare a test cancelled based on a
mistake in the process that does not have a
significant adverse effect on the right of the
employee to a fair and accurate test. Thus,
minor administrative mistakes or an error
that does not affect employee protections
cannot be used as grounds to cancel DOT
test results.
Section 5. EMPLOYER
RESPONSIBILITIES
Employers are responsible for ensuring
that all aspects of the alcohol testing
program are in compliance with 49 CFR
Part 40. Even though employers may hire
service agents to perform the testing
functions, the employer cannot delegate the
responsibility for compliance. An FTA
recipient or subrecipient whose service
agents do not meet, or who violate,
applicable requirements and procedures of
Part 40 will be deemed to be out of
compliance and subject to losing their FTA
funding.
All written or unwritten contracts,
agreements, or arrangements with service
agents concerning the provision of DOT
drug and alcohol testing services are
deemed, as a matter of law, to require
compliance with all applicable DOT and
FTA drug and alcohol testing regulations
(§40.11).
Employer Actions. Once an employer is
notified by the BAT/STT of a confirmed
positive alcohol test result (≥ 0.04) or a test
refusal, the employer must immediately
remove the employee from safety-sensitive
job duties. The employer must not wait for
the written report from the BAT. The
employee cannot be returned to safetysensitive
duty until the employee has
successfully completed the return-to-duty
process as defined further in Chapter 9 of
these Guidelines.
A test result that is 0.02 or greater, but
less than 0.04 is not a positive test under the
regulations and, therefore, does not have the
same consequences. Since the test result is
also non-negative, the employee must be
removed from safety-sensitive duties and
cannot be allowed to return until the next
regularly scheduled duty period, but not less
than 8 hours. The employee may perform
safety-sensitive functions earlier if a retest
indicates an alcohol concentration of less
than 0.02. Because an alcohol test result in
this range is not positive, employers may not
impose any additional consequences under
FTA authority. However, employers may
establish consequences for a non-negative
test result under their independent authority
that is otherwise consistent with law. For
example, some employers discipline
employees that have been removed from
duty because of a non-negative test result as
an unexcused absence and not as a violation
of the FTA drug and alcohol testing rule.
Chapter 8. Alcohol Testing Procedures 8-11 August 2002