What does 49 CFR 40.21 (May an employer stand down an employee before the MRO has completed the verification process?) require?

Short answer

An employer is prohibited from standing down an employee before the MRO has completed the verification process, except with a waiver from a DOT agency. The employer may request a waiver from the concerned DOT agency, which must include a proposed written company policy concerning stand-down.

The rule says

"As an employer, you are prohibited from standing employees down, except consistent with a waiver a DOT agency grants under this section." (49 CFR 40.21(a))

Your proposed written company policy concerning stand-down, which must include the following elements: ... 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.. — 49 CFR 40.21(b)(2)(ii).

In plain English

This rule means that an employer cannot temporarily remove an employee from safety-sensitive duties based on a lab report alone, before the MRO has verified the test result. To do so, the employer must get a waiver from the relevant DOT agency, which requires a detailed company policy to ensure confidentiality and fairness. The policy must prevent the spread of information about the test result within the organization and ensure that the employee is treated consistently with others in the same job category.

What to do

• Request a waiver from the concerned DOT agency if you need to stand down an employee before the MRO completes the verification process.
• Develop a proposed written company policy concerning stand-down, including measures to maintain confidentiality and ensure consistent treatment of employees.
• Ensure that your policy includes all required elements, such as protecting employee pay and benefits during the stand-down period.
• Submit your waiver request and policy to the DOT agency for approval.