Question: A collector prepared to perform a random DOT drug and alcohol test on a rail road employee who works a safety sensitive position and under “hours of service” rules. This employee selected for the random test said he could not stay for the random test because he had worked 12 hours, which is the maximum amount of hours a safety sensitive worker can work in a day as described in “hours of service rules of the FRA”. Is this employee justified in leaving before completing the random drug and alcohol test?
Answer: No incumbent employee has the ability to abandon a collection in progress (once they have been notified). Employees do not control whether a collection of a specimen can or should occur, but they are free to complain after the collection is completed. Therefore, if the employee leaves before the end of the collection, it is a refusal. In the case of a random test, that refusal would stand even if the employee was correct about Hours-Of-Service (HOS) expiring.
The single exception would be pre-employment, where the applicant can depart the collection at any time until they cross the threshold of the collection area to be handed a cup. See 40.191(a)(1)-(2) and 40.261(a)(1)-(2), http://www.dot.gov/odapc/part40/40_261.
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