My Driver Refused a DOT Drug Test. What Now?

This article is for the owner or designated employer representative (DER) of a small fleet, including owner-operators. Under 49 CFR 382.211, a driver may not refuse a random, post-accident, reasonable-suspicion or follow-up test. Part 40 decides what counts as a refusal, and the decision is usually yours.

What counts as a refusal

Under 49 CFR 40.191, a driver has refused a drug test when he:

Doesn't go when told to test. For randoms, FMCSA requires the driver to go immediately after notice (382.305(l)). "Immediately" isn't defined in hours, but urine catches most drugs for only two to three days, so extra time makes the test useless. The expiration date on the test order has nothing to do with it. See Why your driver must test the moment you tell him.
Leaves the collection site before the test is done. The collector records what happened in the remarks on the custody form.
Won't provide a specimen, or can't provide enough. After a short first specimen, he gets up to three hours to try again. He's told to stay in the testing area and may drink up to 40 ounces of fluid. If he still can't, the collector stops and tells the DER, and you send him for a medical evaluation within five days. If the doctor finds no medical reason, the MRO reports it as a refusal (40.193).
Won't allow an observed collection when one is required, or won't follow the observer's instructions. For example, if a specimen is outside the temperature range, it still goes to the lab, and a second specimen is collected right away under direct observation. Both go to the lab.
Won't cooperate with the process, such as refusing to empty his pockets, or arguing until the collector can't proceed.
Has a device for tampering, or admits to the collector or MRO that he adulterated or substituted the specimen.
Submits a specimen the MRO verifies as adulterated or substituted.

Alcohol works the same way under 40.261, including not providing enough breath without a medical reason.

Pre-employment exception: an applicant who leaves before the test begins has not refused. Once the collection starts, walking out is a refusal.

Who decides it's a refusal

You do, for anything that happened at the site. The collector writes what happened on the custody form and tells the DER. A collector, consortium or TPA may not make the refusal decision for you (40.355(i)). The MRO decides only the medical questions: an adulterated or substituted specimen, or a claim that the driver couldn't give enough urine or breath.

Before you decide, get the facts in writing. If it is a refusal, this is the documentation you'll submit with the Clearinghouse report:

When and how the driver was told to test, and by whom.
The collector's remarks on the custody form.
The driver's side, if he offers one. A flat tire with a photo is not a refusal. "I didn't feel like it" is.

Today: take the driver off safety-sensitive duty

Once you decide it's a refusal, everything that follows a failed test applies (382.211, 382.501):

Remove the driver from all safety-sensitive work, including driving.
Give him a list of SAPs (40.287), even if you are letting him go. TrueTest can provide the list.
Report it to the Clearinghouse by the close of the third business day. You, or your C/TPA if you've designated one, report collection-site refusals. The MRO reports the ones he decides (382.705). For a no-show, the report must include a record made at the time showing when the driver was notified and the time, date and site he was told to go to; the date he quit or was let go, if that happened; and proof you sent him copies of all of it (382.705(b)(3)).

The rest is the same as a positive: SAP evaluation, a directly observed return-to-duty test, and follow-up testing. See My driver failed a DOT drug test. What now?

"He quit when I told him about the random"

Quitting after he was told to test doesn't undo the failure to appear. The refusal happened when he didn't go, and the Clearinghouse report has a place for the date he quit. If he resigned before you told him he was selected, there is nothing to test; take him off your list. Write down the time of each event, because the order of events decides it.

Setting the "reasonable time" before it happens

"Immediately" isn't defined in hours, so define it yourself, in your written policy and in every notice: go now, to this site. For a driver out on the road, name a site near him. Send the notice in writing at the moment you tell him. That written notice is the record the Clearinghouse report needs.

What TrueTest does

Places the order the same day at a collection site near your driver. The order's expiration date is not the driver's deadline; he goes when you tell him.
Sends you the collector's remarks with the custody form when a collection ends early.
Can file the refusal in the Clearinghouse once you've designated TrueTest as your C/TPA with permission to report, and sent us the documentation. We also provide the SAP list.
Return-to-duty and follow-up collections, directly observed, at Elk Grove Village or a site near your driver.

The price is $65 per DOT test, plus $50 for a directly observed collection.

Questions DERs ask

Is a refusal the same as a positive?

Yes. The consequences are the same: removal, the SAP process, and a Clearinghouse record.

Can the collector decide it was a refusal?

No. The collector documents it. The employer decides, except for adulterated or substituted specimens and medical questions, which the MRO decides.

My driver couldn't pee. Is that a refusal?

Not yet. He gets up to three hours and 40 ounces of fluid. If he still can't provide enough, you send him for a medical evaluation within five days. It becomes a refusal only if the doctor finds no medical reason.

Do I report a refusal to the Clearinghouse?

Yes, for refusals at the collection site, by the close of the third business day. The MRO reports refusals he verifies.