DOT Refusals to Test: Employer Decides.
The regulations clearly document the behaviors that are considered to be DOT refusals to test and a while back we addressed those DOT refusals to test where the BAT decides in a separate blog article. But there are clearly behaviors that are DOT refusals to test that are decided by the employer.
DOT Refusals to Test: Failure to Arrive
If an employee fails to arrive at the testing site within a reasonable amount of time after being directed to do so by the employer, the employer may determine this to be a refusal to test. If an employee has not arrived at the testing site for a scheduled alcohol test, the BAT or STT must call the Designated Employer Representative to inform them. The DER determines the reasonable amount of time the employee has to show up for their test, and makes the final decision as to whether the employee has refused the test.
An exception to this rule may be in an employee’s failure to appear for a pre-employment alcohol test. A pre-employment test is scheduled after an employer makes a job offer contingent upon passing a drug and alcohol test. An employee who does not show up for their pre-employment test is considered to have changed their mind about accepting the job offer from that particular employer not refused the alcohol test.
DOT Refusals to Test: Insufficient Sample
Failure to provide a breath or saliva sample in certain situations may be considered a refusal to test. The employee may behave as if they doing their best to cooperate with the test procedure but may in fact be faking it. An insufficient sample situation is in the category of refusals because not providing an adequate breath or saliva sample for an alcohol test is a common tactic that an employee might use as a way to beat the test. There is no way for a BAT or STT to determine if an employee has physical limitations or an illness or if the employee is just pretending.
When the test ends up in an insufficient sample scenario, the technician immediately notifies the employer. The employer must then schedule the employee to be examined by a physician within five days of the test. If the physician determines if there is no valid medical condition that would prevent the employee from providing a breath or saliva sample, the employer judges that the employee has refused the test. On the other hand, if the physician determines that the employee does have a legitimate medical condition that caused the insufficient sample, then the employer considers the test as a cancelled test. A cancelled test is as if it never occurred.
Additionally, if the employee declines to undergo the medical examination as directed by the employer, the employee is considered to have refused the test. The employer treats all DOT refusals to test as if it were a positive test result and takes the appropriate steps to remove that employee from safety-sensitive duties and arrange for the employee to undergo an evaluation by a Substance Abuse Professional.