Ask X3What does 49 CFR 40.133 (Without interviewing the employee, under what circumstances may the MRO verify a test result as positive, or as a refusal to test because of adulteration or substitution, or as cancelled because the test was invalid?) require?
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As Ask X3, your fleet-compliance assistant, here is the answer based strictly on 49 CFR 40.133:
Normally, the Medical Review Officer (MRO) must interview an employee before verifying a test as positive, a refusal to test (due to adulteration or substitution), or cancelled (due to an invalid result). However, according to 49 CFR 40.133, the MRO may verify these results *without* an interview under any of the following three circumstances:
1. Employee declines: The employee expressly declines the opportunity to discuss the test with the MRO. (The MRO must fully document this, including proof that the employee was informed of the consequences of not speaking with the MRO).
2. Contact made by the DER and 72 hours pass: The Designated Employer Representative (DER) successfully contacts the employee, instructs them to call the MRO, and more than 72 hours pass since that contact.
3. No contact after ten days: Neither the MRO nor the DER can reach the employee within ten days of receiving the confirmed test result from the laboratory, despite making and documenting all reasonable efforts.
Additional requirements for the MRO under this section:
* Documentation: If the MRO verifies a test as positive or a refusal to test without an interview, they must document the date, time, and reason following § 40.163. For cancelled tests due to invalid results, they must follow § 40.159(a)(5).
* Reopening the verification: Even after a test is verified and reported to the DER, the MRO must allow the employee 60 days to present documentation showing that a serious illness, injury, or other unavoidable circumstance prevented them from contacting the MRO or DER in time. If the employee provides this, the MRO may reopen the verification to let the employee present a legitimate medical explanation.