Who Determines A Refusal to Test?

Department of Transportation (DOT) safety sensitive employees are required to comply with the Drug and Alcohol Testing Regulations according to 49 CFR Part 40.  An employee is in violation of those regulations when he or she tests positive for a prohibited substance or when their behavior is determined by a DER or MRO to be a refusal to test.

A refusal to test can fall into three categories – administrative, procedural, and medical.  A recent article published by the Federal Transit Administration (FTA) helps to identify the different categories of refusal and the decision-making parties for each.

Administrative refusals are determined by the Designated Employer Representative (DER).  These occur when the employee refuses to submit to the test upon notification; fails to report to the testing site within a specified time frame; leaves the testing site before the test is completed; or refuses to sign Step 2 of the DOT Alcohol Testing Form (ATF).  The FTA writes, “The DER must clearly document their decision to deem an employee’s behavior as a “refusal to test” and, in cases where the DER determines there was not a refusal, they must indicate their reason for ruling so.”  DERs are encouraged by the DOT to consult with a Medical Review Officer (MRO) when in need of assistance in determining an employee’s behavior as a refusal to test.

Procedural refusals will occur when the donor is uncooperative with the collector by refusing to follow the testing instructions; fails to permit monitoring or observation (in required cases); is in possession of a prosthetic device; or attempts to adulterate or substitute specimen.

Medical refusals can occur with the submission of an adulterated or substituted specimen; when the employee refuses to undergo a medical evaluation; when a doctor determines that the donor had the physiological ability but did not produce sufficient specimen during a “shy bladder” testing event; or when the donor admits to the MRO that the specimen was adulterated or substituted.

In both procedural and medical refusals the MRO makes the final decision.  In the event of a procedural refusal the collector must document the employee’s behavior and submit it to the MRO.  The collector must also notify the DER of the refusal.  The DER must remove the employee from safety sensitive duty until the final determination is made by the MRO.

Once a “refusal to test” is determined, the employee in violation must successfully complete the Return-to-Duty SAP process before being eligible to return to safety sensitive duty.

49 CFR Part 40, Sections 40.191 and 40.261 outline the parameters of a refusal to test.

Source: “Administrative vs. MRO-Produced Refusals” FTA Drug and Alcohol Regulation Updates, Issue 53, January 2014: 8.