Understanding Refusal To Test On Drug Tests

In the United States, employers can generally require applicants to take a drug test and deny employment if they refuse. While employers cannot physically force an employee to take a drug test, refusal can result in consequences such as termination and loss of employee benefits. Refusal to test can be constituted by failing to remain at the testing site, not providing a specimen, failing to permit observation during a urine collection, failing to undergo a medical examination, and failing to cooperate with the testing process. In certain circumstances, employees may refuse to take a drug test, such as when they have a protected disability or can prove that the request is based on discrimination.

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Leaving before the testing process is complete

An employee leaving before the drug testing process is complete can be deemed a refusal to test, but this is ultimately at the employer's discretion. The collector or MRO (Medical Review Officer) must terminate the testing process, document the refusal, and notify the DER (Designated Employer Representative). The collector must also note the actions that may constitute a refusal in the "Remarks" line and sign and date the CCF (Custody and Control Form). However, if an employee leaves the testing site before the testing process begins, they are not deemed to have refused the test, and the collector is not required to inform them that staying is mandatory.

The consequences of refusing to take a drug test can vary depending on state laws, company policies, employment contracts, and other factors. In most cases, employees who refuse to take a mandatory drug test face termination from their job and the loss of associated benefits, such as health insurance. Additionally, some states may prohibit employees from claiming unemployment benefits if they are fired for refusing a drug test.

It is important to note that employers typically need reasonable suspicion to require current employees to undergo drug testing. However, they can generally deny employment to applicants who refuse to take a pre-employment drug test. In some cases, employees may refuse to take a drug test without facing termination. This includes situations where the employee can prove that the employer's request is based on discrimination, secret drug testing without consent, or failure to accommodate a disability protected by the Americans with Disabilities Act (ADA).

While employees have the right to refuse a drug test, employers also have the right to refuse employment or take disciplinary action based on that refusal. The specific consequences are outlined in DOT agency regulations and cannot be overturned or set aside by arbitration, grievance, or non-Federal legal proceedings.

Failing to provide a specimen

In the case of a urine test, an employee must provide 45 mL of urine in a single void for the specimen to be considered sufficient. For an oral fluid test, 2 mL of oral fluid in a single sampling is required. If an employee does not provide a sufficient amount of specimen, the collector must provide another opportunity for the employee to do so. This can be done using the same specimen type as the original collection or an alternate specimen collection. If the employee is unable to provide a sufficient specimen due to a medical condition, they must obtain an evaluation from a licensed physician within five days.

If an employee refuses to make a second attempt to provide a specimen or leaves the collection site before the collection process is complete, the collector must discontinue the collection and notify the employer. The employer will then decide whether the situation is deemed to be a refusal.

It is important to note that failing to provide a sufficient specimen may not always be due to refusal or non-cooperation on the part of the employee. There can be various problems with the collection process, such as leakage or the use of an expired device, which can result in an insufficient amount of specimen. In such cases, the drug test may need to be cancelled and conducted again.

Failing to permit observation of specimen collection

Failing to permit the observation of specimen collection during a drug test can have significant consequences and may be considered a refusal to test. This applies to both current employees and applicants for employment.

For current employees, if they fail to permit the observation or monitoring of their provision of a specimen during a directly observed or monitored urine collection, it may be deemed a refusal to test. This is outlined in §§ 40.67(m) and 40.69(g) of the relevant regulations. In such cases, the collector or Medical Review Officer (MRO) must terminate the testing process, document the refusal, and notify the Designated Employer Representative (DER).

For applicants, the situation may vary depending on the state and organization's specific policies. While an employer cannot physically force an applicant to take a drug test, they can deny employment if the applicant refuses. This includes refusing to permit the observation of specimen collection, which is a required part of the testing process.

It is important to note that the collector does not make the final decision about whether an employee's conduct constitutes a refusal to test. This responsibility falls solely on the employer, as stated in § 40.355(i). Additionally, recollection under direct observation may be required in certain situations, such as when a laboratory reports an "Invalid Result" or a correctable flaw.

Overall, failing to permit the observation of specimen collection during a drug test can have significant implications, including potential refusal to hire for applicants and disciplinary action for employees under DOT agency regulations.

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Failing to undergo a medical examination

For current employees, a refusal to test on a drug test can lead to consequences as specified under DOT agency regulations, which cannot be overturned or set aside by arbitration, grievance, or State court. The collector or MRO (Medical Review Officer) must terminate their portion of the testing process, document the refusal, and notify the DER (Designated Employer Representative). The collector must note the actions that may constitute a refusal in the "Remarks" line and sign and date the report. However, the collector does not make the final decision on whether the employee's conduct constitutes a refusal to test; this responsibility falls solely on the employer.

For applicants, refusing to undergo a medical examination or evaluation as part of a pre-employment drug test is deemed a refusal to test only if the test is conducted following a contingent offer of employment. If there is no contingent offer, the MRO will cancel the test. It is important to note that employers generally have the right to deny employment if an applicant refuses to take a drug test.

In both cases, failing to undergo a medical examination or evaluation is considered a refusal to test and can result in consequences such as termination of employment or denial of employment opportunities.

Failing to cooperate with the testing process

• Leaving before the completion of the testing process. In this case, the employer must decide whether the employee's actions constitute a refusal.
• Not providing a specimen for a drug test. However, if an employee leaves the testing site before the testing process begins, they are usually not deemed to have refused the test.
• In the case of a directly observed or monitored urine collection, failing to permit the observation or monitoring of an employee providing a specimen.
• Failing to provide a sufficient amount of specimen when directed, and it has been determined that there was no adequate medical explanation for the failure.
• Failing to undergo a medical examination or evaluation as directed by the Medical Review Officer (MRO) or Designated Employer Representative (DER).
• Failing to cooperate with any part of the testing process, such as refusing to empty pockets, behaving disruptively, failing to wash hands, failing to remove objects from the mouth, failing to permit inspection of the oral cavity, or failing to complete a rinse when requested.

It is important to note that the collector or MRO must document any refusal to participate in the testing process and notify the DER. The employer has the sole responsibility to decide whether an employee's actions constitute a refusal to test.

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