40.67 Employer – When and how is a directly observed collection conducted?
(a) As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if:
(1) The laboratory reported to the MRO that a specimen is invalid without medical;
(2) The Original is positive, adulterated, or substituted result had to be cancelled because the test of the split specimen could not be performed; or
(3) The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as negative- dilute and that a second collection must take place under direct observation see www.dot.gov/odapc/part40/40_197 ).
(b) If the drug test is a return-to-duty test or a follow-up test.
As the employer, you must explain to the employee the reason for a directly observed collection.