For Department of Transportation (DOT) covered employers, the rules about drug testing and alcohol testing are clear. You must consent to be tested. (Learn more in 8 Things Employers Should Know About DOT Drug and Alcohol Testing).
But what happens when your employee refuses to be tested? Regardless of the circumstances, DOT views a refusal to test as a positive test result. This is an equally critical responsibility, but also a frequently misunderstood one. The determination of whether a refusal to test occurs depends on the circumstances, but more often than not, you, as the employer, will make the determination. It is critical that you know what constitutes a refusal to test and that you know your responsibilities when a refusal occurs. Here is what you need to know about an employee’s refusal to test.
Who Determines a Refusal to Test?
Because there are so many individuals involved in the ordering, collection and processing of DOT drug tests, there are also many individuals responsible for determining when a refusal to test has occurred. The employer or the employer’s Designated Employer Representative (DER), Breath Alcohol Technician (BAT), Screening Test Technician (STT) and the Medical Review Officer (MRO) can all be called upon to determine a refusal to test depending on the circumstances of the refusal.
DOT maintains a list of Part 40 refusals that identify the event, the decision maker and provide details for making the determination of refusal to test. You can find these on the DOT website. MROs will make the determination in the following situations.
- The employee fails to provide a sufficient amount of urine. This is assumed to be a refusal to test if the MRO determines there is no medical reason for the insufficient amount.
- The employee fails to undergo a medical examination or evaluation the MRO has directed.
- The employee adulterates or substitutes a urine specimen. A situation where the lab reports confirmed tampering and the MRO determines there is no medical reason for it. (Learn more in How To Avoid Adulteration In Employee Drug Testing).
- The employee admits to the MRO to having adulterated or substituted the specimen.
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Employer or DER decisions
The final decision to determine a refusal to test will default to you, the employer, or your DER . Many of these determinations are made after review of documentation from collectors, STTs or BATs and occasionally in consultation with an MRO. Employers or DERs will make the final determination of refusal to test in the following situations:
- Failure to appear or failure to remain at the collection or test site. In this case you will want to pay close attention to the comments on the chain of custody form. An employee must be allowed the full three hours to provide a specimen so if a clinic sends an employee away because it is about to close that does not constitute a refusal.
- Taking too long to report to the collection site. It is up to you to decide what is a reasonable amount of time, but it is easier to document this decision if there is an actual missed appointment. Most sites have sign in sheets to document employee arrivals.
- Failure to provide a urine sample.
- Failing or declining to take an additional drug test directed by the employer or collector.
- Failure to cooperate with the collection or alcohol testing process. Examples of this include: refusing to empty pockets or remove hat or coat, behaving in a confrontational manner or failing to wash hands as directed. There are two exceptions to this. If an employee refuses to sign a form or initial the vials or provide their full social security number, it is not considered a refusal to test but will be noted by the collector.
- Possession or wearing of a prosthetic device designed to carry a clean urine sample.
- Admitting to the collector to having adulterated or substituted the sample.
- Failure to provide an adequate amount of saliva or breath.
Pre-Placement drug tests
A refusal only occurs in a pre-placement test if the employee backs out during the actual testing process. It isn’t considered a refusal if they change their mind in the waiting room for example, as there could be multiple reasons for this including deciding not to take your job offer after all.
Your responsibilities after a refusal
If a collector, STT or BAT report a refusal you must immediately remove the affected employee from any safety-sensitive duties. Then you, or the DER , will make a final decision on the test refusal based on the documentation from the collector, STT or BAT and in compliance with DOT instructions.
If you determine a refusal did occur, the employee should be provided with a list of Substance Abuse Professionals (SAP) in your area. It is the employee’s responsibility to contact the SAP. The important thing for you to know is that the employee must not return to safety-sensitive duties until the SAP return-to-duty process is successfully completed.
Although it happens rarely, you may make the determination that a refusal did not occur. In this situation you must carefully document your decision and provide your reasoning for it. This documentation must be maintained and provided to DOT on request. DOT can overturn your decision. You should also be aware that an MROs decision is final and cannot be reviewed or altered by the employer or DER.
Consequences of a refusal to test
The decision to fire based on a positive test or a refusal to test is yours, subject to your policies and any collective bargaining requirements at your workplace. DOT does not make this determination for you. However, if you do allow your employee to return to a safety-sensitive duty you must ensure they complete the SAP return-to-duty process.
The role of the SAP
Your only obligation to an employee following a test refusal is to provide a list of SAPs in your area that are acceptable to you and that meet DOT requirements. The SAP will take the lead on the return-to-duty process which includes assessment, programming, and follow-up testing and evaluations. The SAP will provide you with ongoing reports. You should also be aware that you are well within your rights as an employer to confer with the SAP about the employee’s DOT testing. You do not need the permission of the employee.