In every manager’s life, there comes a day when an employee will refuse to do something you’ve asked them to do. In the world of DOT drug testing, the most common kind of refusal is a refusal to test. You might think this is an easy rule to administer, but you’d be wrong. Consider the following: An employee is directed to go to the local collection site about 5 miles away at 1:00 pm in the afternoon for their random test but did not arrive to take their test until the next morning. Was this a refusal to test? We’ll soon find out.
It all depends on what happened and when it happened during the drug test as to who will make the final decision that this was indeed a refusal to test. Here are the top ten things you need to know as an employer about DOT refusals to test. So put on your Columbo trench coat and be prepared to play detective to ask, “Just one more question” before you give your final answer.
1. Who determines the refusal? According to the DOT regulations, there’s not just one person who may determine if there is a refusal to test. A drug test has many moving pieces: There is the employer, who directs the employee to take the test, the collection site (clinic or patient service center) where the specimen is collected, and/or a Breath Alcohol Technician (BAT) if it’s a breath alcohol test and finally the Medical Review Officer (MRO), all who can be included in the decision of whether a refusal to test has happened.
2. Pre-place Drug Tests: If this is an applicant, they are not yet your employee, they can change their mind about a job offer even if they are already in the waiting room waiting to take their test. It’s possible they could get a phone call for a better offer or just walk out for no reason at all prior to being tested. None of those situations would be a refusal to test. A pre-place test is only a refusal if the applicant starts the testing process (i.e., the collector hands the donor the cup) and then the donor backs out of the test during the collection.
If that happens, the collector will note the employee left during the collection process on the drug test form and immediately contact the employer to notify them. The employer would then be required to evaluate the situation by verifying the circumstances with the collector, interview the applicant/employee, and then make their final determination if a refusal to test occurred. As a best practice, it is recommended the employer have written documentation (i.e., the employer copy of the chain of custody form and any notes of conversations with the employee or collector) and review that information with their C-TPA or MRO before reporting the refusal to test to the FMCSA Drug & Alcohol Clearinghouse.
3. Taking too long to report to the collection site. If an employee takes too long to get to the test site or does not show up at all, this can also be considered as a refusal to test. It’s up to the employer to determine what is a reasonable amount of time and to make their expectations known both to the employee and the collection site. It’s a little-known fact if an appointment is made it’s up to the collection site to let the employer know if their employee did not arrive in a timely fashion for their appointment or not at all. If it is a walk-in location that does not have appointments this can make it more difficult to prove when the employee arrived. Most sites, however, use a sign-in sheet to verify when the employee arrived or if an electronic chain of custody is used, you can even specify how long the employee must complete their test (i.e., 24 hours, 48 hours, etc.). In the case above the employee did leave immediately at 1:00 PM to go to the collection site as required and arrived fifteen minutes later, but the site was closed for lunch until 1:30 pm. Instead of waiting nearby to be tested at 1:30 pm the employee left, had lunch, then went back to work without being tested. What this can mean is the employee may have intentionally delayed or avoided his random drug test. In this case, the employer did train their employees to report to the site “immediately” and to stay until they had been tested, so after reviewing what happened with the employee, the employer determined it was in fact, a “refusal to test.” Best practices for DOT random drug and alcohol testing
4. Employee Disruptions: If an employee is disruptive or does not do as asked during the collection process (i.e., empty pockets, wash their hands, remove outer clothing, be verbally abusive to the collector, refuse to do an observed collection when one is required), the collector has the right to stop the collection and note the “refusal” on the chain of custody form. Again, it is the employer who is burdened with reviewing all the facts to determine if there was an actual refusal to test. This is where the MRO and/or their C-TPA can be invaluable in helping the employer determine if this was truly a refusal to test. There are a few situations where employee actions are not considered a refusal to test. So, for example, if the employee refuses to initial the security seals on the bottles and/or sign their name on the drug test form but follows through with all other parts of the collection as required, this is not considered as a refusal to test according to the DOT Urine Specimen Collection Guidelines (2018), but those actions must be noted on the chain of custody by the collector. Urine Specimen Collection Guidelines | US Department of Transportation
5. Leaving the Collection Site Before Completing the Collection: Again, this is one area the employer needs to pay special attention to the remarks on the chain of custody form. If an employee leaves before fully attempting to provide a specimen in the 3 hours allotted or before being excused by the collector, this is a refusal to test. The litmus test is whether or not the employee was allowed up to 3 hours and up to 40 oz. of water in order to provide a 45 ml split-specimen. In some cases, the collector may improperly dismiss an employee before the donor has provided a specimen, due to the clinic closing. However, the DOT is firm on allowing the donor enough time to provide an adequate 45 ml split specimen once the collection has started. Again, it is the employer is the one who makes the decision if the employee is compliant or not. Note: There is a big difference between an employee who says they “will not” vs. “cannot” provide a specimen. Employees who ‘will not” are refusing to test, employees who say they “cannot” may have a medical condition aka “shy bladder.”
6. Shy bladder or Shy lung determinations: In some cases, the employee cannot provide a urine specimen within the 3-hour window allowed or cannot provide an adequate breath alcohol result. In both circumstances, the collector or BAT technician will note it, but they may not consider it a refusal to test. It’s the MRO to review with the employee and their attending physician to make the final determination. In some cases, it’s just a review of the employee’s health history and having adequate documentation from their personal physician. In other cases, an exam by an MRO may be ordered for the employee in question and if there is a final determination there is no medical reason for a shy lung or bladder situation, it will be deemed as a refusal to test by the MRO.
7. Admitting to tampering or substituting a specimen: In this case, it’s determined by when this happened. When it happens during the collection process (i.e., emptying pockets yields a vial of urine), the collector will either initiate a directly observed collection by a same-sex observer or if the donor admits to the tampering or the collector finds a prosthetic device during an observed collection, it will be immediately considered as a refusal to test and so noted on the chain of custody form. The employer again, makes the final determination based on the collector’s comments on the chain of custody form. In some cases, the confession by the employee that their test was tampered or substituted will happen with the interview with the MRO once they have received the results of the specimen that was either tampered with or adulterated.
8. Failure to report for an MRO directed a medical exam, directly observed test, or breath evaluation: You would think this is a no-brainer and the MRO would make the final determination. Not so, again it’s the employer who determines if the employee did or did not comply with the MRO’s instructions to report immediately for this test as required. Again, the employer would report any refusal to test to the FMCSA Clearinghouse.
9. Employee fails to contact the MRO for a positive drug test: If the test is found positive, the MRO review process begins. A series of phone calls begins to try and contact the donor to set up a time to talk with the MRO about the test result within a 72-hour window. If the employee fails to make contact or fails to call in as promised, this is NOT a refusal to test, rather it is considered as an assumed positive result and will be so noted by the Medical Review Officer.
10. Employee has an adulterated or substitute specimen: Anytime the employee has either adulterated or substitute specimen, the MRO will make the final determination of a refusal to test.
Keep in mind, it may be difficult to remember all these rules, so it’s prudent to keep a copy of the most current employer guidelines: Urine Specimen Collection Guidelines (transportation.gov) or to have a company like ours, Drug-Free Business, who can easily help you with your DOT drug testing questions. For more information and to sign up for our newsletter