What does 49 CFR 40.23 (What actions do employers take after receiving verified test results?) require?

Short answer

49 CFR 40.23 requires employers to immediately remove employees from performing safety-sensitive functions after receiving verified positive drug test results, adulterated or substituted test results, or alcohol test results of 0.04 or higher. Employers must also temporarily remove employees with alcohol test results between 0.02 and 0.039.

The rule says

"As an employer who receives a verified positive drug test result, you must immediately remove the employee involved from performing safety-sensitive functions." (49 CFR 40.23(a))

"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." (49 CFR 40.23(b))

"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." (49 CFR 40.23(c))

In plain English

When an employer receives a verified positive drug test result, an adulterated or substituted test result, or an alcohol test result above the threshold, they must immediately remove the employee from safety-sensitive duties. Employers should have a clear procedure in place to handle such situations, including notifying the employee and removing them from duty.

What to do

• Immediately remove the employee from safety-sensitive functions upon receiving a verified positive test result or an alcohol test result above the threshold.
• Notify the employee of the removal and the reason for it.
• Ensure the employee does not return to safety-sensitive functions until they have completed the return-to-duty process.
• Review and update company policies to ensure compliance with 49 CFR 40.23.