Figure 9.1. Record Retention Requirements

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.

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

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.

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.

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))

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

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

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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