C.F.R. » Title 49 » PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS › Subpart G—Medical Review Officers and the Verification Process

49 C.F.R. § 40.149

May the MRO change a verified drug test result?

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(a) As the MRO, you may change a verified test result only in the following situations:

(1) When you have reopened a verification that was done without an interview with an employee (see § 40.133(d)).

(2) If you receive information, not available to you at the time of the original verification, demonstrating that the laboratory made an error in identifying (e.g., a paperwork mistake) or testing (e.g., a false positive or negative) the employee's primary or split specimen. For example, suppose the laboratory originally reported a positive test result for Employee X and a negative result for Employee Y. You verified the test results as reported to you. Then the laboratory notifies you that it mixed up the two test results, and X was really negative and Y was really positive. You would change X's test result from positive to negative and contact Y to conduct a verification interview.

(3) If, within 60 days of the original verification decision—

(i) You receive information that could not reasonably have been provided to you at the time of the decision demonstrating that there is a legitimate medical explanation for the presence of drug(s)/metabolite(s) in the employee's specimen; or

(ii) You receive credible new or additional evidence that a legitimate medical explanation for an adulterated or substituted result exists.

Example to paragraph (a)(3):If the employee's physician provides you a valid prescription that he or she failed to find at the time of the original verification, you may change the test result from positive to negative if you conclude that the prescription provides a legitimate medical explanation for the drug(s)/ metabolite(s) in the employee's specimen.

(4) If you receive the information in paragraph (a)(3) of this section after the 60-day period, you must consult with ODAPC prior to changing the result.

(5) When you have made an administrative error and reported an incorrect result.

(b) If you change the result, you must immediately notify the DER in writing, as provided in §§ 40.163-40.165.

(c) You are the only person permitted to change a verified test result, such as a verified positive test result or a determination that an individual has refused to test because of adulteration or substitution. This is because, as the MRO, you have the sole authority under this part to make medical determinations leading to a verified test (e.g., a determination that there was or was not a legitimate medical explanation for a laboratory test result). For example, an arbitrator is not permitted to overturn the medical judgment of the MRO that the employee failed to present a legitimate medical explanation for a positive, adulterated, or substituted test result of his or her specimen.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 FR 35971, June 25, 2008]
Notes of Decisions
Cited in 9 cases (6 in the last 5 years), 2006–2026 · leading case: In re the Arbitration between City of Ithaca & Civil Serv. Employees Ass'n, 25 A.D.3d 859 (N.Y. App. Div. 2006).
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In re the Arbitration between City of Ithaca & Civil Serv. Employees Ass'n, 25 A.D.3d 859 (N.Y. App. Div. 2006). “Supreme Court granted the petition after determining that respondent’s challenge to the MRO’s decision was not arbitrable.”
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). “TriMet relies on 49 CFR section 40.149(c) (2001) in support of its argument that, in concluding that grievant’s drug test should have been cancelled, the arbitrator impermissibly overturned the medical judgment of the MRO.”
Matter of Middleton v. New York City Tr. Auth., 2024 NY Slip Op 33533(U) (N.Y. Sup. Ct., New York Cty. 2024). · cites it 5× “Of the regulations cited, however, the Court finds that only one potentially supports of NYCTA’s position: 49 CFR § 40.149 (c).4 Section 40.149(c), entitled “May the MRO change a verified drug test result?,” provides: You are the only person permitted to change a verified test…”
Union Pac. R.R. Co. v. Am. Ry. (5th Cir. 2020). · cites it 4× “at 420, and we consider whether the ultimate arbitration award violated 49 C.F.R. § 40.149 (c). We look, then, to see not if the false-positive determination itself violates public policy, but whether the PLB’s failure to defer to the MRO creates a conflict between the…”
In the Matter of P.O. Stephen McGee, Etc. (N.J. Super. Ct. App. Div. 2024). · cites it 2× “The Police Chief found the ALJ failed to: (a) provide any analysis of the federal regulation; (b) use the federal definition of marijuana or provide an analysis of the same; and (c) interpret 49 C.F.R. 40.149 correctly. He noted the ALJ incorrectly relied on the testimony of…”
Unified Sys. Div., Bhd. of Maint. of Way Employes Div. of the Int'l Bhd. of Teamsters v. Union Pac. R.R. Co. (D. Neb. 2024). · cites it 2× “Of Drug & Alcohol Pol’y & Compliance, DOT Rule 49 C.F.R. § 40.149 Q&A, U.S. Dep’t of Transp.”
Matter of Middleton v. New York City Tr. Auth. (N.Y. App. Div. 2026). · cites it 2× “149[a][5]), not the substantive medical determination of the MRO ( see 49 CFR 40.149[c]). The arbitrator found the inexperienced MRO was improperly influenced by the Designated Employer Representative, who was not permitted to act.”
Brady Bass v. DISA Global Solutions, Inc., Convenient Care, L.L.C. d/b/a Total Occupational Med., Randy B. Barnett, D.O., & Psychemedics Corp. (La. Ct. App. 2024). “; constitutional due process violations; violation of HHS Mandatory Guidelines for Federal Workplace Drug Testing; violation of Department of Transportation regulations, 49 CFR § 40.149 ; interference with contract; violation of the Louisiana Human Rights Act; and violation of…”
Wolfgramm v. Commc'n Workers of Am. Local 13301 (E.D. Pa. 2024). “81 49 CFR § 40.149 (a)(3). 82 Sarullo v. U.S.”
— 49 C.F.R. § 40.149(c) — 1 case
Amalgamated Transit Union Div. Local 757 v. Tri-Cnty. Metro. Transp. Dist., 195 P.3d 389 (Or. Ct. App. 2008). “TriMet relies on 49 CFR section 40.149(c) (2001) in support of its argument that, in concluding that grievant’s drug test should have been cancelled, the arbitrator impermissibly overturned the medical judgment of the MRO.”
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