49 C.F.R. § 40.123

What are the MRO's responsibilities in the DOT drug testing program?

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As an MRO, you have the following basic responsibilities:

(a) Acting as an independent and impartial “gatekeeper” and advocate for the accuracy and integrity of the drug testing process.

(b) Providing a quality assurance review of the drug testing process for the specimens under your purview. This includes, but is not limited to:

(1) Ensuring the review of the CCF on all specimen collections for the purposes of determining whether there is a problem that may cause a test to be cancelled (see §§ 40.199-40.203). As an MRO, you are not required to review laboratory internal chain of custody documentation. No one is permitted to cancel a test because you have not reviewed this documentation;

(2) Providing feedback to employers, collection sites and laboratories regarding performance issues where necessary; and

(3) Reporting to and consulting with the ODAPC or a relevant DOT agency when you wish DOT assistance in resolving any program issue. As an employer or service agent, you are prohibited from limiting or attempting to limit the MRO's access to DOT for this purpose and from retaliating in any way against an MRO for discussing drug testing issues with DOT.

(c) You must determine whether there is a legitimate medical explanation for confirmed positive, adulterated, substituted, and invalid results from the laboratory.

(d) While you provide medical review of employees' test results, this part does not deem that you have established a doctor-patient relationship with the employees whose tests you review.

(e) You must act to investigate and correct problems where possible and notify appropriate parties (e.g., HHS, DOT, employers, service agents) where assistance is needed, (e.g., cancelled or problematic tests, incorrect results).

(f) You must ensure the timely flow of test results and other information to employers.

(g) You must protect the confidentiality of the drug testing information.

(h) You must perform all your functions in compliance with this part and other DOT agency regulations.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017; 88 FR 27645, May 2, 2023]

Notes of Decisions

Cited in 16 cases (2 in the last 5 years), 2004–2025 · leading case: Doctor Fred L. Pasternack v. Lab'y Corp. of Am. Holdings, 59 N.E.3d 485 (NY 2016).

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Doctor Fred L. Pasternack v. Lab'y Corp. of Am. Holdings, 59 N.E.3d 485 (NY 2016). · cites it 2× “Although he asserts that ChoicePoint violated numerous DOT Regulations, he cites two regulations in particular: 49 CFR § 40.123 (3), which provides that the MRO "must act to investigate and correct problems where possible and notify appropriate parties .”

Pasternack v. Lab'y Corp. of Am., 892 F. Supp. 2d 540 (S.D.N.Y. 2012). · cites it 5× “Pasternack’s collection, as it was required to do under 49 C.F.R. § 40.123 (3), or make the determination that (1) Dr.”

Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14 (2d Cir. 2015). · cites it 2× “” 49 C.F.R. § 40.123 (e). Of particular relevance is § 40.”

UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240 (Pa. Commw. Ct. 2004). · cites it 3× “” 49 C.F.R. § 40.123 (a), (b). 15 . The MRO determines "whether there is a legitimate medical explanation for confirmed positive, adulterated, substituted, and invalid drug test results from the laboratory.”

Shrout v. the TFE Grp., 161 S.W.3d 351 (Ky. Ct. App. 2005). · cites it 2× “49 C.F.R. § 40.123 (a). 21 . 49 C.F.R. § 40.”

Drake v. Lab'y Corp. of Am. Holdings, 458 F.3d 48 (2d Cir. 2006). “See 49 C.F.R. § 40.123 ; 14 C.F.R. pt. 121 App.”

Kugler v. LexisNexis Occupational Health Solutions, Inc., 16 F. Supp. 3d 999 (E.D. Wis. 2014). “” 49 C.F.R. § 40.123 . Thus, by design, neither Aurora nor ACL could exercise any kind of meaningful control over LexisNex-is.”

Pasternack v. Lab'y Corp. (2d Cir. 2015). · cites it 2× “ʺ 49 C.F.R. § 40.123 (e). Of particular relevance is § 40.”

Pasternack v. Lab'y Corp. of Am. Holdings (2d Cir. 2015). · cites it 2× “ʺ 49 C.F.R. § 40.123 (e). Of particular relevance is § 40.”

John Lisotto v. New Prime, Inc., 647 F. App'x 259 (4th Cir. 2016). “20; see also 49 C.F.R. § 40.123 (a) (An MRO “[a]ct[s] as an independent and impartial ‘gatekeeper’ and advocate for the accuracy and integrity of the drug testing process.”

Fred L. Pasternack v. Ne. Aviation Corp. (Del. Ch. 2018). “49 C.F.R. § 40.123 (a), (b) (entitled “What are the MRO’s responsibilities in the DOT drug testing program?”).”

Matter of Middleton v. New York City Tr. Auth., 2024 NY Slip Op 33533(U) (N.Y. Sup. Ct., New York Cty. 2024). “at 6-7, 12; 49 CFR § 40.123 (a). An arbitrator cannot cancel a drug test administered pursuant to the federal drug-testing regulations based upon lack of conformance with a testing process that does not exist, in some express or implied form, in the regulations.”

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