49 C.F.R. § 40.171

How does an employee request a test of a split specimen?

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(a) As an employee, when the MRO has notified you that you have a verified positive drug test and/or refusal to test because of adulteration or substitution, you have 72 hours from the time of notification to request a test of the split specimen. The request may be verbal or in writing. If you make this request to the MRO within 72 hours, you trigger the requirements of this section for a test of the split specimen. There is no split specimen testing for an invalid result.

(b)(1) If, as an employee, you have not requested a test of the split specimen within 72 hours, you may present to the MRO information documenting that serious injury, illness, lack of actual notice of the verified test result, inability to contact the MRO (e.g., there was no one in the MRO's office and the answering machine was not working), or other circumstances unavoidably prevented you from making a timely request.

(2) As the MRO, if you conclude from the employee's information that there was a legitimate reason for the employee's failure to contact you within 72 hours, you must direct that the test of the split specimen take place, just as you would when there is a timely request.

(c) When the employee makes a timely request for a test of the split specimen under paragraphs (a) and (b) of this section, you must, as the MRO, immediately provide written notice to the laboratory that tested the primary specimen, directing the laboratory to forward the split specimen to a second HHS-certified laboratory. You must also document the date and time of the employee's request.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]

Notes of Decisions

Cited in 4 cases, 2002–2019 · leading case: Robin Willie Turner v. Hirschbach Motor Lines, 854 F.3d 926 (7th Cir. 2017).

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Robin Willie Turner v. Hirschbach Motor Lines, 854 F.3d 926 (7th Cir. 2017). “Hirschbach’s safety officer, Lester Winegarden, then told Turner he had the right to request that the second half of his sample be tested by a different laboratory (a “split test” covered by 49 C.F.R. § 40.171 ). Turner told Winegarden he wanted the split test, though he admits…”

Rector v. LabOne, Inc., 208 F. Supp. 2d 987 (E.D. Ark. 2002). · cites it 2× “See 49 C.F.R. § 40.171 (b). If the Medical Review Officer concludes that the failure was excusable, he must order the test of the split specimen as if the request was timely made.”

Wigginton v. White, 847 N.E.2d 646 (Ill. App. Ct. 2006). · cites it 2× “” 49 C.F.R. § 40.171 (b)(1) (2005). If the MRO concludes that there was a “legitimate” reason for the school bus driver’s failure to contact the MRO within 72 hours, the MRO is to direct the testing of the split specimen as if the school bus driver’s request was timely.”

Davis v. Lewis, 376 F. Supp. 3d 629 (E.D.N.C. 2019). “49 C.F.R. § 40.171 (a). Plaintiff was offered and specifically refused a test of the second split prior to his resignation.”

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