In our work with Designated Employer Representatives (DERs), or those who manage a business’s drug and alcohol testing program, we often see some confusion about who makes the call that an employee’s behavior during a drug or alcohol test collection constitutes a refusal to test. Is it the collector’s responsibility, or is it the DER’s?
The U.S. Department of Transportation, for workplaces regulated under 49 CFR Part 40, is clear that ultimately it is the employer’s, in other words, the DER’s responsibility:
“The collector does not make the final decision about whether the employee’s conduct constitutes a refusal to test; the employer has the sole responsibility to decide whether a refusal occurred, as stated in § 40.355(i), the employer has a non-delegable duty to make the decision about whether the employee has refused to test.”
But how do we get there?
Refusal to Test Process
First, what would constitute a Refusal to Test?
According to DOT, a Refusal to Test determination is made when an employee won’t cooperate with any part of the testing process during a collection or afterward.
This could include the employee not showing up for the collection, leaving the collection site before the collection is completed, not providing the required specimen (unless there is a medical reason), or not following the collector’s instructions.
This could also include the employee not cooperating with an MRO’s request for additional information or instruction to undergo further medical testing.
The determination is also made when the collector observes that the employee has attempted to cheat the test in some way, by adulterating the specimen or bringing a device into the collection site that can be used to provide a false specimen or if the employee admits to trying to cheat the test.
When the collector notes any of these types of testing situations or employee behaviors, it is their responsibility to stop the test. Then, they must immediately document in detail what has occurred on the CCF and notify the DER. The collector cannot make the final determination that a refusal has occurred.
The DER’s Role
Timely communication about a likely test refusal is key. Therefore, it is critically important that the DER is accessible. Before the testing process even begins, you, as the DER, must provide collectors and MROs with good contact information where they can reach you at any time. This includes outside of business hours in the event a post-accident test needs to be conducted in the middle of the night.
It is in everyone’s best interest for a collection to be successful. Therefore, there may be some back and forth between the DER, the collector and the employee before the testing process ends and the refusal determination is made.
If the employee is not cooperating, the collector will typically ask the DER to talk to the employee and explain to them the consequences for not complying – that a refusal is essentially the same as a positive result for a drug or alcohol screening, that the employee will be removed from safety-sensitive duties immediately and that they will likely face other consequences including possible termination.
Hopefully, the DER can encourage the employee to follow the collector’s instructions, and the testing process can continue.
If the employee still won’t comply, or if it is clear that they are trying to cheat the test, the collector will document the circumstances in the Remarks section of the CCF and usually with an additional memorandum. The DER will sign off and confirm the final refusal determination.
Then, it is your responsibility to make sure the employee does not return to work and implement additional consequences, such as managing the Return to Duty process for the employee or any consequences outlined in your company policy.
The Medical Review Officer can report and verify to the employer (DER) that a testing situation should be determined as a Refusal to Test, but again, ultimately is up to the employer to make the final determination and take the next steps.
Problem collections can be confusing. But remember, your C/TPA is there to assist with these types of testing issues. If you are uncertain about what you need to do, don’t hesitate to reach out to the TSS team, and we will help you ensure that your business is compliant.