There is often confusion when an applicant or employee refuses a DOT required drug or alcohol test. Some refusals are determined by the medical review officer (MRO) and some by the employer. Typically, if a specimen is not collected and sent to the lab for testing, the employer is responsible for the official determination of the refusal to test. This does not always happen. For alcohol testing the employer is always responsible to make the determination of a refusal.
DOT provides a handbook for employees entitled What Employees Need To Know About DOT Drug & Alcohol Testing, Page 11 defines the refusals for drug testing and for alcohol testing, DOT regulated employees should be given this handbook.
DOT also provides a handbook for employers entitled What Employers Need to Know About DOT Drug and Alcohol Testing. Page 25 provides a chart providing employers with information on what exactly is a refusal to test and who determines it. The following refusals are determined by an employer specifically the designated employer representative (DER):
- Fail to appear at a urine collection site when directed to report
- Fail to remain at the urine collection site
- Fail to provide a urine specimen
- Fail to permit a monitored or observed urine collection
- Fail or decline to take an additional drug test the employer or collector has directed
- Fail to cooperate with any part of the urine collection process
- For an observed collection, fail to follow the instructions to raise and lower clothing and turn around
- Possess or wear a prosthetic or other devices that could be used to interfere with the collection process
- Admit to the collector to having adulterated or substituted the specimen
- Fail to appear for an alcohol test when directed to report
- Fail to remain at the alcohol test site
- Fail to provide an adequate amount of saliva or breath
- Fail to undergo a medical examination or evaluation as the employer has directed as part of the insufficient breath procedures
What’s New and Different and More Difficult?
For FMCSA regulated employers there are now additional employer requirements once the new Clearinghouse rule goes into effect on January 6, 2020. Refusals to test must be reported to the Clearinghouse; the employer must report the refusals listed above. Documentation of these refusals will also be required to be reported to the Clearinghouse. DER’s will be required to report refusals to test by the close of the third business day following the date on which they obtained that information. Now here is the difficult part, for each refusal to test reported, the following additional information must be reported:
- Documentation, including, but not limited to, electronic mail or other contemporaneous records of the time and date the driver was notified to appear at a testing site; and the time, date and testing site location at which the employee was directed to appear, or an affidavit providing evidence of such notification;
- Documentation, including, but not limited to, electronic mail or other correspondence, or an affidavit, indicating the date the employee was terminated or resigned (if applicable);
- Documentation, including, but not limited to, electronic mail or other correspondence, or an affidavit, showing that the C/TPA reporting the violation was designated as a service agent for an employer who employs himself/herself as a driver (Owner Operator) at the time the reported refusal occurred (if applicable); and
- Documentation, including a certificate of service or other evidence, showing that the employer provided the employee with all documentation reported regarding the refusal;
- In the case of a refusal based on the donors (applicant or donor) admission of adulteration or substitution of the specimen; the employer may report only those admissions made to the specimen collector
Employer’s must be diligent about refusals. Proper documentation will be necessary and critical to compliance. Collector notes and affidavits will be necessary to document what happened at the collection site that caused the employer to make the refusal determination. Employers will need more detailed interaction with collection site.
FMCSA Clearinghouse Services, Inc is available to help employers with all aspects of the Commercial Driver’s License Drug and Alcohol Clearinghouse.