July 1, 2003
Mr. Kenneth Edgell
Acting Director
Office of Drug and Alcohol Policy and Compliance
U.S. Dept. of Transportation
400 Seventh St., S.W.
Washington, DC 20590
Dear Ken:
I am writing to bring to your attention a potential conflict within the regulatory text of the Department of Transportation CFR 49 Part 40 Regulations. A problem was recently encountered by a member of DATIA due to this conflicting text, and, without resolution, could happen to additional service agents causing discord in the drug and alcohol testing process.
The conflicting text concerns who can make a refusal to test determination. Section 40.1911 provides the instances in which a refusal to test is determined and provides for collectors and MROs to make refusal to test determinations in certain situations (i.e. adulterated specimen, confrontational donor, leaving testing site before direct observation collection). Section 40.3552 (i), however, states that only the DER may make a refusal to test determination with the exception of two instances spelled out in §40.355 (j). Neither of these exceptions, however, indicate that a collector may make a refusal to test determination in the case of the situations spelled out in §40.191 (a) (2), (3), (4), (6), or (8).
In the situation brought to DATIA’s attention, a collector was physically confronted by a donor. The collector correctly followed the DOT procedures outlined in §40.191 to report a refusal to test. When the collector called the DER to report the refusal, the DER quoted the regulations in §40.355, and stated that the collector could not make a refusal to test determination and that the DER did not see that the actions of the donor constituted a refusal to test.
As you can see, these two conflicting statements in the regulatory text can enable employers to avoid reporting refusal to test situations. To alleviate future problems, DATIA suggests that the DOT add language to §40.355 (j) to indicate that service agents may make refusal to test determinations as provided for in §40.191 (a).
Your cooperation in addressing this situation is greatly appreciated. Should you have any questions, I can be reached at 800-355-1257 ext. 41 or lshelton@datia.org.
Sincerely,
Laura E. Shelton
Executive Director
Enc: Referenced regulatory text
1 §40.191 What is a refusal to take a DOT drug test, and what are the consequences?
(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 “refused to test because” box (Step 6) on Copy 2 of the CCF, and add the reason on the “Remarks” line. You must then sign and date the CCF.
2 §40.355 What limitations apply to the activities of service agents?
(i) Except as provided in paragraph (j) of this section, you must not make a determination that an employee has refused a drug or alcohol test. This is a non-delegable duty of the actual employer. You may, however, provide advice and information to employers regarding refusal-to-test issues.
(j) As an exception to paragraph (i) of this section, you may make a determination that an employee has refused a drug or alcohol test, if:
(1) You schedule a required test for an owner-operator or other self-employed individual, and the individual fails to appear for the test without a legitimate reason; or
(2) As an MRO, you determine that an individual has refused to test on the basis of adulteration or substitution.
