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From: Robert Swotinsky, MD
Date: 17 Nov 2005
Time: 12:05:52 -0800
Remote Name: 65.206.105.12
For those readers who, unlike me, don't speak in Part 40:
§40.123(a) says the MRO is responsible for acting as an independent and impartial "gatekeeper" and advocate for the accuracy and integrity of the drug testing process.
§40.123(b)(2) and (3) says the MRO provides feedback to employers regarding performance issues where necessary, and reports to ODAPC or a relevant DOT agency when the MRO wishes DOT assistance in resolving "any program issue."
§40.327 refers to notifying third parties of drug test results and medical information that makes the employee medically unqualified or poses a safety risk.
I still stand by my comment: The fact that the DER may not be taking action based on the donor's apparent refusal to take a test does not mean the MRO is legally or morally obliged to notify FAA or another regulatory body. It's a good idea for the MRO to try and explain the issue to the employer. Also realize: The MRO may not have all the facts. Was this really a DOT test? Is the DER going to respond to the refusal to test appropriately, even though it's suggested he won't.
There are probably certain types of employer noncompliance that most MROs would take into their own hands. For example, an employer who puts a pilot to work despite a cocaine positive test might prompt at least an anonymous heads up to FAA. But, the employer who doesn't act on a refusal to test where the donor left the collection site prematurely.... it doesn't exceed my threshold for taking action as an MRO.
I'd welcome other opinion(s) posted here, particularly with references or other backup that explains the basis of the opinion.