For DOT drug & alcohol testing, employers must report a refusal to test in certain situations. In fact, most refusals to test are determined by the employer. This is very important because starting January 6, 2020 when the FMCSA Drug and Alcohol Clearinghouse goes into effect. Employers will be required to report to the Clearinghouse any refusal to test as determined by the employer. Documentation of the circumstances for the refusal determination will be required.
The list below shows refusals that employers are responsible for determining and responsible to report to the Clearinghouse. This information is also available for Download.
- Fail to appear at a urine collection site when directed to report – If the employee did not get to the site or spent too much time getting there, it is a refusal.
- Fail to remain at the urine collection site – If the collector reports that the employee left the collection site before the testing process was complete, it is a refusal.
- Fail to provide a urine specimen – If the employer ordered an observed collection or if the collector required the collection to be monitored or observed, it is a refusal if the employee does not permit it to occur.
- Fail or decline to take an additional drug test the employer or collector has directed – If the employer or collector directs the employee to take an additional test, as required or permitted by the DOT, and the employee does not, it is a refusal.
- Fail to cooperate with any part of the urine collection process – Some examples of failure to cooperate are when the employee:
- Refuses to empty pockets when directed;
- Behaves in a confrontational manner that disrupts the collection process;
- Refuses to remove hat, coat, gloves, coveralls when directed; or
- Fails to wash hands when directed
- For an observed collection, fail to follow the instructions to raise and lower clothing and turn around – If the employee does not follow these instructions so that the observer can check for prosthetic or other devices that could be used to interfere with the collection process, it is a refusal.
- Possess or wear a prosthetic or other device that could be used to interfere with the collection process – If the employee is found to have or wear a prosthetic or other device designed to carry clean urine or a urine substitute, it is a refusal.
- Admit to the collector to having adulterated or substituted the specimen – If the employee, during the collection process, admits to having tampered with his or her specimen, it is a refusal
- Fail to remain at the alcohol test site – If the STT or BAT reports that the employee left the collection site before the testing process was complete, it is a refusal.
- Fail to provide an adequate amount of saliva or breath – If the STT or BAT reports that the employee left the alcohol testing site before providing a required amount of saliva or breath, it is a refusal.
- Fail to undergo a medical examination or evaluation as the employer has directed as part of the insufficient breath procedures – If the employee does not go in for a medical evaluation or does not permit it to occur, it is a refusal.
- Fail to sign the certification statement at Step 2 of the ATF – If the employee does not agree to have a test accomplished by signing Step 2 of the ATF, it is a refusal.
- Fail to cooperate with any part of the alcohol testing process – One example of failing to cooperate is when the employee behaves in a confrontational manner that disrupts the alcohol testing process.
There is one refusal type determined by an evaluating physician but then reported to the Clearinghouse by the employer:
Fail to provide a sufficient breath specimen – If the evaluating physician finds that there was no medical reason for the employee to provide an insufficient amount of breath, it is a refusal. An evaluating physician’s refusal determination for an employee’s insufficient breath is final and not subject to employer review.
In extremely rare cases for which the employer [DER] determines there is not a refusal, the employer [DER] must document the decision and the solid reasoning for it. The employer must maintain this documentation for a DOT Agency or USCG representative in the event of an inquiry or inspection.
Remember, the employer decision could be overturned by the DOT, a DOT Agency, or the USCG. So, as a safeguard to ensure that the employer make the correct determination, the employer ought to consult with their MRO on collection site refusals – the MRO is, after all, the “Gatekeeper” for the drug testing process.
MRO Determined Refusals
A limited number of refusals are determined by the Medical Review Officer (MRO). It is extremely important to be clear about who determines refusals to test. With the new Clearinghouse requirements employers and MRO’s will need to report the specific refusals that they are responsible for. List below are the MRO determined refusals:
- Adulterate or substitute a urine specimen – If the laboratory reports a confirmed adulterated or substituted specimen to the MRO and the MRO determines there is no medical reason for the result, it is a refusal.
- Fail to provide a sufficient amount of urine after 3-hour shy bladder process – If the MRO finds that there was no medical reason for the employee to provide an insufficient amount of urine, it is a refusal.
- Fail to undergo a medical examination or evaluation the MRO or employer has directed – If the employee does not go in for a medical evaluation or does not permit it to occur, it is a refusal.
- Admit to the MRO to having adulterated or substituted the specimen – If the employee, during a medical review, admits to having tampered with his or her specimen, it is a refusal.
An MRO’s refusal determination is final and not subject to employer review. An evaluating physician’s refusal determination for an employee’s insufficient breath is final and not subject to employer review.
Assistance is available from ClearinghouseServices.com for reporting to the Clearinghouse and for MRO services.
