Documenting Refusals for an Accurate Determination

Patrice Kelly, Director of ODAPC, discussed the importance of adequately documenting drug test refusals during a recent presentation. Often, the collection sites don’t provide an extensive description of the reasoning behind the refusal, leaving Designated Employer Representatives (DERs) with very little information to make an accurate determination. By following DOT guidelines, expert advice, and best practices when documenting refusals, DERs will obtain a more thorough explanation helping to solidify the most accurate determination for a refusal ruling.

What is a Refusal?

A refusal is when an employee subjected to a drug test for their employer refuses to take the test or properly supply a collection sample. Under the DOT, there are many different ways an employee can be deemed as a refusal other than simply saying “no.” According to the DOT, the following are reasons why a donor can be considered a refusal during the drug and/or alcohol testing collection process.

• Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));
• Fail to remain at the testing site until the testing process is complete; Provided, that an employee who leaves the testing site before the testing process commences (see §40.63(c)) for a pre-employment test is not deemed to have refused to test;
• Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations; Provided, That an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see §40.63(c)) for a pre-employment test is not deemed to have refused to test;
• In the case of a directly observed or monitored collection in a drug test, fail to permit the observation or monitoring of your provision of a specimen (see §§40.67(l) and 40.69(g));
• Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see §40.193(d)(2));
• Fail or decline to take an additional drug test the employer or collector has directed you to take (see, for instance, §40.197(b));
• Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under §40.193(d). In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; or
• Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector).
• For an observed collection, fail to follow the observer’s instructions to raise your clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process.
•  Possess or wear a prosthetic or other device that could be used to interfere with the collection process.
•  Possess or wear a prosthetic or other device that could be used to interfere with the collection process.

Documenting Refusals

When documenting refusals, it’s vital that the collector and/or MRO provide as much detail as possible.The more information and description that's given, the more accurate a determination can be made. Ideally, a short paragraph between 2-3 sentences should provide enough details of the refusal scenario to assist with a determination for the DER. According to the DOT, the following should take place while documenting a refusal:

“(d) As a collector or an MRO, when an employee refuses to participate in the part of the testing process in which you are involved, you must terminate the portion of the testing process in which you are involved, document the refusal on the CCF (including, in the case of the collector, printing the employee's name on Copy 2 of the CCF), immediately notify the DER by any means (e.g., telephone or secure fax machine) that ensures that the refusal notification is immediately received. As a referral physician (e.g., physician evaluating a “shy bladder” condition or a claim of a legitimate medical explanation in a validity testing situation), you must notify the MRO, who in turn will notify the DER.

(1) As the collector, you must note the refusal in the “Remarks” line (Step 2), and sign and date the CCF.

(2) As the MRO, you must note the refusal by checking the “Refusal to Test” box in Step 6 on Copy 2 of the CCF, checking whether the specimen was adulterated or substituted and, if adulterated, noting the adulterant/reason. If there was another reason for the refusal, check “Other” in Step 6 on Copy 2 of the CCF, and note the reason next to the “Other” box and on the “Remarks” lines, as needed. You must then sign and date the CCF.”

Record Keeping Expectations for Employers

Employers covered under DOT drug and alcohol testing regulations must maintain records that document their testing program consistent with 49 CFR Part 40 and other industry-specific regulations. Documents that employers are required to keep, include test results, testing process administration, return-to-duty process administration, employee training, and supervisor training. Additionally, employers may also be required to submit an annual report to a DOT agency regarding testing activity and results.

When storing DOT drug and alcohol records, they must be kept in a secure location with controlled access, locked in filing cabinets, and, if stored electronically, password protected. For those utilizing a consortium or Third-Party Administrator (TPA), such as DISA Global Solutions, you do not have to maintain a duplicate set of records, but understand, it’s the employer’s responsibility to ensure procedures are in place that guarantees accurate and current records are saved according to DOT regulations.

The length of time records must be kept can vary by the DOT agency, but for refusals to test is five years regardless.

How Can DISA Help?

DISA’s professionals can help assist you with maintaining compliance and recordkeeping for DOT drug and alcohol testing requirements.  Regardless of the DOT agency you report to, we can offer assistance with FAA, FRA, FTA, FMCSA, PHMSA, and USCG.

With a variety of experts, we can help you create a program custom to your industry’s needs.

DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA’

Visit www.askdisa.com to ask your questions today.

Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.