As a laboratory, when you conduct validity testing under § 40.86, you must conduct it in accordance with the requirements of this section.
(a) You must determine the creatinine concentration on each primary specimen. You must also determine its specific gravity if you find the creatinine concentration to be less than 20 mg/dL.
(b) You must determine the pH of each primary specimen.
(c) You must perform one or more validity tests for oxidizing adulterants on each primary specimen.
(d) You must perform additional validity tests on the primary specimen when the following conditions are observed:
(1) Abnormal physical characteristics;
(2) Reactions or responses characteristic of an adulterant obtained during initial or confirmatory drug tests (e.g., non-recovery of internal standards, unusual response); or
(3) Possible unidentified interfering substance or adulterant.
(e) If you determine that the specimen is invalid and HHS guidelines direct you to contact the MRO, you must contact the MRO and together decide if testing the primary specimen by another HHS certified laboratory would be useful in being able to report a positive or adulterated test result.
[65 FR 79526, Dec. 19, 2000, as amended at 69 FR 64867, Nov. 9, 2004. Redesignated and amended at 88 FR 27643, May 2, 2023]
Notes of Decisions
Rodriguez v. Lab'y Corp. of Am. Holdings, 13 F. Supp. 3d 121 (D.C. Cir. 2014).
· cites it 2× “4; see also 49 C.F.R. § 40.87 . To conduct the initial screen, the laboratory must use an enzyme-multiplied immunoassay technique (“EMIT”) test.”
Rector v. LabOne, Inc., 208 F. Supp. 2d 987 (E.D. Ark. 2002).
“See 49 C.F.R. § 40.87 . The laboratory then reports the result to the Medical Review Officer.”
Townley v. Georgia Pac. Corp., 388 S.W.3d 475 (Ark. Ct. App. 2012).
· cites it 3× “49 C.F.R. § 40.87 (a). The initial test cutoff concentration for marijuana metabolites is 50 ng/mL, and the confirmatory test cutoff concentration is 15 ng/mL.”
Clucas v. RT 80 Express, Inc., 2012 Ohio 1259 (Ohio Ct. App. 2012).
“He does not dispute the accuracy of the measurement; instead, he argues that any result less than 50 ng/ml must be deemed a negative result pursuant to 49 C.F.R. 40.87(a). Section 40 of the Code of Federal Regulations distinguishes between Department of Transportation drug and…”
Michael Anderson v. Detroit Transit Co. (E.D. Mich. 2020).
· cites it 3× “) Anderson’s tests results were above the drug test thresholds contained in 49 C.F.R. § 40.87 , but Defendants omitted significant qualifiers in their explanations.”
Johnson v. HireRight, LLC (N.D. Okla. 2023).
“On initial testing, Plaintiff’s specimen screened positive for THCA at a level of 74 ng/mL Because Plaintiff’s THCA levels exceeded the federally defined cutoff of 50 ng/mL, the specimen was sent for definitive confirmation testing pursuant to 49 C.F.R. § 40.87 (b). The…”
In the Matter of P.O. Stephen McGee, Etc. (N.J. Super. Ct. App. Div. 2024).
“He noted McGee's primary specimen was twice tested A-0566-22 22 above both established thresholds under 49 C.F.R. 40.87. First, it was tested at 51 ng/ml, above the 50 ng/ml threshold, then it was tested to confirm a threshold above 15 ng/ml.”
Del Rosario v. Fresh Mark, Inc., 2026 Ohio 274 (Ohio Ct. App. 2026).
“87 of Title 49 of the Code of Federal Regulations, 49 C.F.R. 40.87, as amended." The burden of proof to overcome the rebuttal presumption is on the claimant.”
— 49 C.F.R. § 40.87(a) — 1 case
Clucas v. RT 80 Express, Inc., 2012 Ohio 1259 (Ohio Ct. App. 2012).
“He does not dispute the accuracy of the measurement; instead, he argues that any result less than 50 ng/ml must be deemed a negative result pursuant to 49 C.F.R. 40.87(a). Section 40 of the Code of Federal Regulations distinguishes between Department of Transportation drug and…”
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