Ask X3What does 49 CFR 40.355 (What limitations apply to the activities of service agents?) require?
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As Ask X3, your fleet-compliance assistant, here is what 49 CFR 40.355 requires regarding the limitations on service agents in the DOT drug and alcohol testing program:
* No Consent or Liability Waivers: Service agents (or anyone acting on their behalf) must not require employees to sign a consent, release, waiver of liability, or indemnification agreement for any part of the testing process.
* No Result Intermediary for Labs: Service agents cannot act as an intermediary to transmit drug test results from the laboratory to the Medical Review Officer (MRO).
* No Direct Lab Results to Employers: Service agents must not transmit confirmed drug test results directly from the lab to the employer (or via a forwarding service agent). All confirmed results must go through the MRO first.
* No Alcohol Result Intermediary: Service agents must not act as an intermediary in transmitting alcohol test results of 0.02 or higher from the Screening Test Technician (STT) or Breath Alcohol Technician (BAT) to the Designated Employer Representative (DER).
* No SAP Report Intermediary: Service agents must not act as an intermediary to transmit individual Substance Abuse Professional (SAP) reports to the actual employer (though exceptions exist for owner-operators/self-employed individuals, and summary reports/follow-up plans may be maintained or sent simultaneously).
* No Testing Decisions: Service agents cannot make decisions to test employees based on reasonable suspicion, post-accident, return-to-duty, or follow-up criteria—these are non-delegable employer duties (except when dealing with owner-operators or self-employed individuals). However, service agents may provide advice and scheduling information.
* No Refusal Determinations: Service agents cannot determine that an employee has refused a drug or alcohol test, as this is a non-delegable duty of the employer. Exceptions include when a service agent schedules a test for an owner-operator who fails to appear without a legitimate reason, or when an MRO determines a refusal based on adulteration or substitution.
* No Acting as a DER: Service agents must not act as a DER (e.g., they cannot remove employees from safety-sensitive duties on behalf of the employer).
* CCF Limitations: When transmitting documents to testing laboratories, service agents must send only Copy 1 of the Custody and Control Form (CCF). No other copies of the CCF or Alcohol Testing Forms (ATFs) may be sent to the lab.
* No Unauthorized Requirements: Service agents must not impose conditions or requirements on employers that are not authorized by DOT regulations (such as requiring unrequired plan provisions).
* No Intentional Delays: Service agents must not intentionally delay the transmission of testing-related documents due to payment disputes or other reasons.
* Employer Accountability: Under 49 CFR 40.355, while service agents must follow DOT regulations, the actual employer remains fully accountable to the DOT for compliance. A service agent's failure to properly implement the program makes the employer subject to DOT enforcement action.