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Figure 9.1. Record Retention Requirements
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Chapter 9.
ADMINISTRATION
You must maintain certain records concerning your alcohol and
controlled substances testing program for specific
periods of time. While most of the recordkeeping
and reporting requirements are specified in the regulations, others are good business practices.
This chapter consolidates these requirements to provide a comprehensive picture
of recordkeeping and reporting processes.
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Section 1. RECORDKEEPING
You must maintain records on your program administration and the test results
of individuals for whom you have testing responsibility. Figure 9.1 summarizes
your record retention requirements. You must maintain your records in a secure location
with controlled access. The duration and types of records that must be maintained can be
found in the appendix of this chapter. Records
shall
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be made available for inspection at
the employer's principal place of business within 2
business days after a request has been made by
an authorized representative of the Federal Motor Carrier Safety
Administration (FMCSA).
Specific records may be maintained on
computer, or at a regional or terminal office,
provided the records can be made available
upon request from FMCSA within 2 business
days.
If you use a consortium to administer
your testing program, you may arrange to have
the consortium maintain some or all of your
records. It is not necessary, under these
circumstances, for you to maintain a duplicate
set of records. However, it is your
responsibility to exercise and document
oversight/compliance activities to ensure that
records are accurate and current and that they
fully comply with FMCSA regulations. The
consortium must be able to get documents to
the employer within 2 business days.
Oversight of the consortium may include those
activities shown in Table 9-1. Checklists of
how long you must maintain your records can
be found in the appendix at the end of this
chapter.
Section 2. DOCUMENTATION
In addition to the specific requirements
set forth in the regulations, other portions of
the rule pertain to record-keeping or reporting
responsibilities that are described in greater
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detail elsewhere in these guidelines. These
other responsibilities are the following:
Driver Program Participation.
If you wish to use a driver who
participates in an alcohol and controlled
substances testing program (that meets these regulations) administered by another employer,
you must retain information about the driver's
participation in that program. This information
is discussed in detail in Chapter 5, "Types of
Testing." This information must be verified
every six months if you continue to use the
driver (§382.301(d)(2)).
Release Form.
When verifying information about a driver participating in another alcohol
and controlled substances program, you will need a request signed by the driver authorizing
the other testing program to release the necessary information to you.
Similarly, you will need a written authorization
from your driver to release information to other
employers (§382.405(h) and 40.321(b)).
Reasonable Suspicion.
When supervisors request a driver to submit to testing for reasonable suspicion,
the behavior(s) that led to the request to test
must be documented.
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Table 9.1. Examples of Consortium Monitoring/Oversight Activities
· Reviewing references of organizations and bidders proposing consortium services
to ensure that they are qualified to perform the services and, ideally, that they currently
are performing the same or similar services successfully.
· Maintaining a contract that requires the consortium to retain records in compliance
with 49 CFR part 382 and any amendments to that regulation or subsequent
regulations regarding FMCSA-controlled substances and alcohol-testing recordkeeping.
· Requiring the consortium to provide regular (monthly or quarterly, as appropriate to
your testing volume) reports of testing activity regarding your employees.
· Maintaining a contract that permits you to review the consortium's procedures
and facilities and to review the records of your employees. Exercising this option
where feasible or economically justifiable to do so.
· Maintaining a contract that requires the consortium to provide you with copies of
your records upon request within 2 employer business days if you require such records
for FMCSA or other review.
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This documentation should include the identity
of the driver, time and location of the
observation(s), behavior(s) observed, and
signature(s) of the witness(es).
Random Testing Selection Process.
You must document the selection process used for random testing. For
example, you must Maintain a list of the employees tested, the
identification of employer representatives selecting the sample, the
dates of selection and testing, and the
confidential test results for each testing period.
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Section 3. CONFIDENTIALITY
The regulations require that test results
may be released only under the following
circumstances:
Employers must release
information or copies of records
regarding a driver's test results to
a third party only as directed by
specific, written instruction of the
driver [this includes the driver's
subsequent employer(s)]
(§382.405(f) and 40.25(h)).
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Employers may disclose
information related to a test result
to the decision maker in a lawsuit,
grievance, or other proceeding
initiated by, or on behalf of, the
driver tested (§382.405(g) and 40.323(a)(2)).
Upon written request, employers
must promptly provide any driver
with records relating to his or her
test. (§382.405(b))
Employers must release
information to the National
Transportation Safety Board
(NTSB) about any post-accident
test performed for an accident
under investigation. (§382.405(e))
Employers must make available
copies of all results of driver
testing programs, and any other
records pertaining to testing
programs when requested by
FMCSA or any State, or local
agency with regulatory authority
over the employer or any of its
drivers. (§382.405(d))
Employers must maintain records in a
secure manner, so that disclosure of
information to unauthorized persons does not
occur. (§382.405(a))
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Besides employers, the collection site
personnel, the laboratory, the MRO, the BAT,
and the SAP must also be held to strict
confidentiality requirements. The laboratory
must be prohibited from releasing individual
test results to anyone except the designated
MRO (§40.97(b)). The MRO and the BAT
must only report individual test results to you
or your designated representative and to the
individual who was tested. To ensure that
confidentiality is not violated, it is your
responsibility to clearly define who will receive
test results and for what purposes.
The release of test results is only one
concern. You must also be sensitive to driver
expectations of confidentiality in other aspects
of your controlled substances use and alcohol
misuse program. For example, if it becomes
widely known that a driver has undergone
reasonable suspicion testing (even though the
test results are negative), that driver may feel
that his or her privacy and confidentiality has
been violated. Likewise, if referrals to an EAP
for rehabilitation become a topic of gossip,
drivers may lose faith in your program and
become distrustful of, and hostile toward,
management. Therefore, confidentiality should
be applied to all aspects of your controlled
substances use and alcohol misuse program,
particularly with respect to identifying specific
individuals. The general rule of thumb is to
apply the same high regard for privacy and
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confidentiality that you would want and expect
for yourself.
Medical Review Officer (§382.407).
The MRO is the only individual in the
controlled substances testing process with
access to all the items of information provided during the procedure, including receiving test
results from the laboratory and any privileged
medical information from the driver. It is the
MRO who passes on individual test results to
the driver and the employer. The regulations
specify the manner in which test results are to
be transmitted to the employer. The MRO may
initially report to the employer using secure
and confidential messenger, fax, telephone,
electronic transmission or any other secure,
confidential communications device. In all
instances of any test result (e.g., canceled,
negative, and positive), the initial report to the
employer must be followed by a written
document within 3 business days of the MRO
review. This document must be signed by the
MRO, or for negative results, rubber stamped
by the MRO's staff.
The MRO must maintain all dated
records and notifications for verified positive
controlled substances test results, identified by
individual, for 5 years.
The MRO must maintain all dated
records and notifications for negative and
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cancelled controlled substances test results,
identified by individual, for 1 year.
The MRO must not release the
individual controlled substances test results of
any driver to any person without specific,
written authorization from the tested driver.
However, the MRO must release driverspecific
results to the driver's employer or Federal, State, or local officials with regulatory
authority over the controlled substances testing
program. (§382.409(c))
Section 4. TESTING
LABORATORY PROCEDURES
Section 40.43 of the DOT regulation
requires your testing laboratory to maintain a
clear and well-documented procedure for
collecting, shipping and processing urine
specimens. The Federal Drug Testing Custody Form (CCF) (§40.45) must be used
to document every urine collection required by the DOT drug testing program and
split specimen collections shall be conducted (§40.71(a)). The Custody and Control
Form (CCF) is a five-part carbonless manifold form.
· Copy 1 of the CCF and the two specimen containers are placed in
plastic pouches and inserted in a shipping
container for shipment to a Department of Health
and Human Services laboratory (DHHS). Copy 2 of the CCF goes to the MRO.
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Copy 3 of the CCF is retained by
the collection site. Copy 4 of the CCF is sent to the employer's
Designated Employer Representative (DER). Copy 5 of the CCF is given to the
specimen donor (§40.73(a)). These
multi-part forms are also described in Chapter 6, "Controlled Substances
Testing Procedures."
· The specimen shipping container is transported by a delivery
service provider to a Department of Health and Human Services (DHHS)
certified laboratory for processing (§40.73(a)(2)).
Once the laboratory has satisfactorily
completed testing procedures, it is required to:
Report the results to your MRO
in a timely manner and is usually done the same day the review is
completed by the laboratory's certifying scientist.
Most laboratories will be able to provide test results within 1-3 days
after receiving specimen unless there is a problem concerning the
specimen (§40.97).
Provide you with a semi-annual statistical summary of all
tests performed (§40.111(a)). This summary must be forwarded to you by January
20 of each year for period covering July 1 through December 31 of the prior
year and by July 20 of each year of period
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covering January 1 through June 30
of current year.
This report must be part of your program administration records.
The laboratory must also maintain written procedures on all
aspects of its analysis and testing program.
Testing laboratories must retain
documentation regarding all aspects of their
testing procedures for 2 years, unless you
request them to retain these records for a
longer period, as you might if they are needed
in legal proceedings (§40.109(c)). Positive
specimens must be maintained for 1 year. If a
positive result is challenged in court, the
specimen must be kept indefinitely
(§40.99(c)).
Section 5. ANNUAL CALENDAR
YEAR SUMMARY
When requested by the FMCSA, another DOT agency, or the Secretary of
Transportation, you must prepare and maintain
an annual summary of the results of your
controlled substances use and alcohol misuse
programs. If the FMCSA requests in writing
that you prepare an annual summary, it must be
completed and reported to FMCSA. The form
and manner of the report will be stated in the
FMCSA's letter to you. Unless specifically
requested, you must not submit an annual
summary to the FMCSA. Reports submitted to
the FMCSA that have not been requested will be discarded.
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Each year in January, the FMCSA will
notify a select number of employers to submit
their annual summaries. If requested by the
FMCSA to submit your annual report, you must do so by March 15 of that year. The
information requested by the FMCSA must be
typed, except for the signature of the certifying
official.
If you are a member of a consortium,
your consortium may prepare your annual
report for you. However, you must sign
report, and you are ultimately responsible for
reports prepared or submitted (if requested) on
your behalf by the consortium.
The annual summary must contain all the information outlined in 49 CFR
Part 382.403. This annual summary must be maintained for 5
years and must be presented for review upon request from an agent of
the U.S. Department of Transportation. An agent of the Department
may also request a summary be prepared during a compliance
investigation. Such a summary would, generally, be for a past
calendar year and you will have two business
days from the time the FMCSA agent makes the request to complete it and provide it to the
agent.
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Chapter 9 Appendix
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Record Retention Checklists
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Record Retention Checklists
Alcohol Program Records You Must Maintain for 1 Year
1. Records of Test Results Less Than 0.02
_____ All copies of the U.S. Department of Transportation (DOT) Breath Alcohol Testing
Form OMB No. 2105-0529, including results of the test.
Alcohol Program Records You Must Maintain for 2 Years
1. Records Related to the Collection Process
Except Calibration of Evidential Breath
Testing Devices
_____ Collection logbooks, if used.
_____ Documents relating to the random selection process.
_____ Documents generated in connection with decisions to administer reasonable
suspicion alcohol tests.
_____ Documents generated in connection with decisions on postaccident tests, including
but not limited to
copies of citation, if given
towing records
medical treatment documentation
copy of accident report.
_____ Documents showing existence of medical explanation of inability of drivers to
provide enough breath for test.
Alcohol Program Records You Must Maintain for 5 Years
1. Alcohol Test Records with Alcohol Readings of 0.02 or Greater
_____ All copies of the alcohol test form, including the results of the test.
_____ Documents related to the refusal of any driver to submit to an alcohol test required by
49 CFR part 382.
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_____ Documents related to a medical inability to provide an adequate breath sample.
_____ Documents presented by a driver to dispute the result of an alcohol test
administered under 49 CFR part 382.
2. Calibration Documentation
_____ Documents specifying the machine calibrated (e.g., by serial number), the date
of calibration, the certified technician calibrating the equipment, and the results of
the calibration signed by the calibrating technician.
_____ Manufacturer's calibration schedule for the model of equipment used.
_____ Certification record for the calibrating technician.
3. Driver Evaluation and Referrals
_____ Records pertaining to a determination by a substance abuse professional concerning
a driver's need for assistance.
_____ Records concerning a driver's compliance with the recommendations of the
substance abuse professional.
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Alcohol Program Records You Must Maintain for as Long as the
Individuals Are Performing the Tasks and for 2 Years After
They Cease Performing the Tasks for the Employer
1. Education and Training Records
_____ Materials on alcohol misuse awareness, including a copy of the employer's policy
on alcohol misuse.
_____ Verification of Breath Alcohol Technician training.
_____ Documentation of compliance with requirements of 49 CFR part 382.
_____ Educational materials that explain the regulatory requirements.
_____ The employer's policy and procedures with respect to implementing the
regulatory requirements.
_____ Documentation of training provided to supervisors to qualify them to make
reasonable suspicion determinations.
_____ Documentation of appropriate MRO training.
_____ Training for persons who directly supervise drivers.
_____ Written notice to every driver of the availability of the above materials.
_____ Written notice to all driver organizations (i.e., collective bargaining units) of
availability of the above materials.
Controlled Substances Program Records You Must Maintain for 1 Year
1. Records of Verified Negative Controlled Substances Test Results
_____ All copies of the Federal Drug Testing Custody and Control Form.
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Controlled Substances Program Records You Must Maintain for 2 Years
1. Records Related to the Collection Process
_____ Collection logbooks, if used.
_____ Documents relating to the random selection process.
_____ Documents generated in connection with decisions to administer
reasonable-suspicion controlled substances tests.
_____ Documents generated in connection with decisions on postaccident testing.
_____ MRO documents showing existence of medical explanation of inability of a driver
to provide enough urine.
Controlled Substances Program Records You Must Maintain for 5 Years
1. Records of Drivers' Verified Positive Controlled Substances Test Results
_____ All copies of the Custody and Control Form.
_____ Documents related to the refusal of any driver to submit to a required
controlled substances test.
_____ Documents presented by a driver to dispute the result of a controlled substances
test administered under 49 CFR part 382.
2. Driver Referrals to Substance Abuse Professional and Return to Duty and Follow-Up
_____ Records pertaining to a determination by a substance abuse professional concerning
a driver's suitability to return to work.
_____ Records concerning a driver's entry into and completion of the program of
rehabilitation recommended by the substance abuse professional.
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Controlled Substances Program Records You Must Maintain for as Long as the
Individuals Are Performing the Tasks and for 2 Years After
They Cease Performing the Tasks for the Employer
1. Education and Training Records
_____ Awareness training materials on controlled substances use, including a copy of
the employer's policy on prohibited use.
_____ Documentation of training provided to supervisors to qualify them to make
reasonable suspicion determinations.
_____ Certification that training complies with the regulatory requirements.
_____ Procedures to assess those with verified positive tests, providing available
services, referral, suspension, and dismissal.
_____ Collection site personnel, SAP, and MRO training.
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