What Counts as a Refusal to Take a DOT Drug Test?

A refusal to take a DOT drug test is defined in 49 CFR 40.191. The listed conduct includes failing to appear for a test within a reasonable time after the employer directs it (pre-employment tests excepted), failing to remain at the testing site until the testing process is complete, failing to provide a specimen, and failing to permit a required observed or monitored collection.

The same section also lists providing an insufficient specimen when a medical evaluation finds no adequate medical explanation, declining an additional test the employer or collector directs, failing to undergo a medical examination or evaluation directed by the Medical Review Officer (MRO) or the employer, failing to cooperate with the testing process, failing to follow the observer's instructions during an observed collection, possessing or wearing a prosthetic or other device that could interfere with the collection, and admitting to the collector or MRO to adulterating or substituting a specimen. An adulterated or substituted result verified by the MRO is also a refusal (49 CFR 40.191).

A pre-employment applicant who leaves before the testing process begins is not considered to have refused. For a pre-employment test, a missed medical examination counts as a refusal only if the test followed a contingent offer of employment. Refusing a non-DOT test is not a DOT refusal (49 CFR 40.191). Alcohol test refusals are covered separately in 49 CFR 40.261.

The collector or MRO documents the event and notifies the Designated Employer Representative (DER). The decision on whether a refusal occurred belongs to the employer. Service agents may not make it, with two exceptions: a missed test that a consortium or third-party administrator scheduled for an owner-operator or other self-employed individual, and an MRO finding of adulteration or substitution (49 CFR 40.191, 49 CFR 40.355).

A refusal counts as a DOT drug and alcohol regulation violation. The employee cannot perform DOT safety-sensitive duties for any employer until completing the Substance Abuse Professional (SAP) evaluation, referral, and education or treatment process (49 CFR 40.285). These consequences cannot be overturned by arbitration, a grievance, a State court, or another non-Federal forum (49 CFR 40.191). For FMCSA-regulated drivers, the employer may not allow a driver who refuses a required test to perform safety-sensitive functions, and the refusal is reported to the Drug and Alcohol Clearinghouse (49 CFR 382.211, 49 CFR 382.705).

Official Sources

• 49 CFR 40.191 (eCFR)
• 49 CFR 40.261 (eCFR)
• 49 CFR 40.285 (eCFR)
• 49 CFR 40.355 (eCFR)
• 49 CFR 382.211 (eCFR)
• 49 CFR 382.705 (eCFR)