What Counts as a Refusal to Test

Under DOT rules a refusal to test carries the consequences of a violation, the same as a verified positive, which makes it one of the most consequential and least understood corners of a program. 49 CFR 40.191 lists the drug-test refusals and 49 CFR 40.261 the alcohol-test refusals. For drug tests they include failing to appear within a reasonable time after the employer directs you to a test (a pre-employment test excepted), failing to remain at the site until the process is complete, failing to provide a specimen, failing to permit a required observed collection, failing to take an additional test the employer or collector directs, failing to undergo a medical evaluation the MRO or DER directs, failing to cooperate with the process, wearing or possessing a device meant to interfere with the collection, admitting to the collector or MRO that you adulterated or substituted the specimen, and a verified adulterated or substituted result. Two situations are handled with care. An applicant who leaves before a pre-employment collection begins has not refused. And an insufficient specimen is a refusal only after the DER, having consulted the MRO, sends the employee for a medical evaluation within five days and the MRO finds no adequate medical explanation (49 CFR 40.193). The employer has the sole, non-delegable duty to decide whether a refusal occurred; a collector notes the facts, and a service agent may not make the call (49 CFR 40.191(d)(1), 40.355(i)).