Does the employer have any discretion when deciding if an incident is a refusal to test?

Yes, in those scenarios in which the employer is the party deciding whether an event is a refusal to be tested, they can consider extenuating circumstances. For example:

• If a driver is late to a scheduled random test after notification and claims to have been rerouted a great distance due to a crash on the way to the clinic, the employer can verify this by calling law enforcement.
• If the driver claims to have received a phone call from the child’s school while waiting to be taken back for DOT test (other than pre-employment) and had to leave due to a medical emergency, the employer can ask for proof from the school or medical facility.

Without proof, the employer should not take the driver’s word alone, since any claims can be made to get out of testing. The employer has to make decision whether the excuse is valid.