Yes. An employer cannot use the defense that its vendor made the mistake and therefore it is not responsible for a violation. According to 40.11(b), the employer is responsible for all actions of its officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations. Section 40.15(c) states the employer remains responsible for compliance with all applicable requirements of Part 40 and other DOT drug and alcohol testing regulations (Part 382), even when it uses a service agent. If the employer violates the DOT drug and alcohol testing regulations because a service agent has not provided services as the rules require, a DOT agency can subject the employer to sanctions.
The employer’s good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency due to noncompliance that resulted from the service agent’s conduct.