• Drivers who leave a drug test collection site too early could put their careers at risk.

The U.S. Department of Transportation (DOT) has guidance explaining when it’s okay to leave a collection site, and when leaving could result in a determination that the driver refused to take the test.

Under DOT regulations in 49 CFR Part 40, a “refusal” holds the same consequences as a positive test. Drivers who refuse testing must stop driving and undergo a lengthy and costly evaluation and treatment process that puts a black mark on the driver’s record and can make future employment difficult.

Part of the confusion that drivers may face is that collection site personnel are not required to warn drivers about the consequences of leaving the site too early.

Am I done yet?

According to the guidance, drivers are only allowed to leave the collection site after:

• Both the driver and the collector complete the “chain of custody” form,
• The collector gives copy 5 of the form to the driver, and
• The collector secures the samples in plastic bags for shipment to a lab.

At that point, collectors are required to tell drivers that they may leave.

If drivers are unable to provide a urine sample, they will be urged to drink up to 40 ounces of water and asked to wait for up to three hours or until they can provide a specimen. If the driver is unable to produce a specimen within three hours, then the testing process is complete and the driver can leave.

The collector must do the following when continuing with an oral-fluid specimen collection under this section:

• If the employee demonstrates an inability to provide a specimen after 15 minutes of using the collection device, and if the donor states that they could provide a specimen after drinking some fluids, urge the employee to drink (up to 8 ounces) and wait an additional 10 minutes before beginning the next specimen collection (a period of up to one hour must be provided, or until the donor has provided a sufficient oral fluid specimen, whichever occurs first).

• If the employee simply needs more time before attempting to provide an oral-fluid specimen, the employee is not required to drink any fluids during the one-hour wait time. It is not a refusal to test if the employee declines to drink.

• The employee must remain at the collection site, in a monitored area designated by the collector, during the wait period.

If the employee has not provided a sufficient specimen within one hour of the first unsuccessful attempt to provide the specimen, the collector must:

• Discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER; and
• Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. The collector must send or fax these copies to the MRO and DER within 24 hours or the next business day.

The employer’s role

If a driver leaves the collection site too early, it’s not considered a refusal until the employer decides it is. In other words, a driver’s employer plays a key role in deciding whether the driver has refused a drug test, the DOT says.

These are the steps that are supposed to take place after a driver leaves a collection site too early:

• The collector must inform the employer immediately, as required under 40.191(d).
• The employer (and not a third party) has to decide whether the employee refused the test. How is that decision made? According to the DOT, the employer should consider:
  • The information documented on the drug testing form.
  • The advice and information received from the collector and service agents.
  • Any supporting information provided by the employee. For example, in the event of a medical emergency, this may be copies of hospital admission records or EMS or police records.
• The employer must document its decision and the reasoning for the decision.
• The employer must keep copies of the decision — and the information relied on in making the decision — for five years.

Why is documentation important? According to the DOT, if their investigators show up for an audit and discover that the employer didn’t properly document a “refusal” decision, the agency may issue a penalty costing potentially thousands of dollars.

The Part 40 guidance, dated July 2014, is considered “official and authoritative guidance and interpretation” under 40.5. The guidance is associated with 40.73, 40.191, 40.193, 40.333, and 40.355.