Random Drug Testing Refusals

Do you ever feel like a number at your company? That no one cares whether you are alive or dead? Try missing a random drug test. They'll remember your name and care about you for three years.

There's no doubt about it, an unexpected random test can present problems and be inconvenient. You were going to take your spouse out to eat after being on the road and you had reservations at your favorite restaurant. Your child needs to be picked up from daycare. You haven't done any drugs so you would like to finish your morning deliveries and then go at noon-after all it won't make any difference on the results.

When you are chosen for a random drug test by your employer, it's wise to paraphrase the old Monopoly Community Chest Card instructions: Proceed immediately to the collection site. Do not pass go. Do not finish another delivery. Go directly to the collection site. The reason of course is that if you don't immediately go to the collection site, your no-show or extreme tardiness will be recorded as a "refusal to test." This will be about as much fun for you in getting another commercial driving job as a positive drug test would be. The information will stay on your record for three years. Potential employers for whom you apply in the future are required to ask every employer of the past three years about positive tests and refusals to test. Past employers, upon receipt of your release, are required to provide this information. And so, as my Mother used to tell me "your sin will find you out." (She's an Old Testament-type Mom.)

Section 382.305(l) of the Drug and Alcohol Regulations states:

Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety- sensitive function and proceeds to the testing site as soon as possible.

There are, very occasionally, circumstances beyond your control, but you still need to play it smart. Let's say you are chosen for random, and having missed the hot date with your spouse, you fight the traffic and proceed immediately to the collection site and there it is: the fire trucks are leaving and where the collection site once stood is a big pile of smoldering ash. [Editor's Note: Thank heaven no one was even slightly injured and there was no arson involved]. Do you suppress an evil chuckle of satisfaction and head home? You better not (head home).

Using a question and answer format, the FMCSA has issued interpretation and guidance on many aspects of the drug and alcohol regulations. On this subject, here's what they have to say:

Q. If a driver has been notified of his/her selection of random drug and/or alcohol testing and the testing cannot be completed because of "unforeseeable obstacles" at the collection site (i.e. collection site closed, collector unavailable when driver shows up, emergency such as a fire, natural disaster, etc…), what is the carrier's responsibility?

A. In instances of "unforeseeable obstacles" the driver shall immediately contact the employer's DER for instructions to an alternative collection site. These "unforeseeable obstacles" do not negate the employer's responsibility of ensuring that the required test be administered.

So it looks like you will get to fight some more traffic while proceeding immediately to another collection site.

The drug and alcohol testing regulations are not a place for you to practice law without a license. Mistakes here are costly. Here is some advice from the Department of Transportation and what you should do if you feel you are being treated unfairly.

Q. Should I refuse a test if I believe I was unfairly selected for testing?

A. A good rule of thumb is "comply, then complain." If you are instructed to submit to a DOT drug and/or alcohol test and you don't agree with the reason or rationale for the test, you should take the test.

Don't interfere with the testing process or refuse the test. Instead, after the test express your concerns about the testing event to your employer (for example, a detailed letter to your company or by an agreed upon grievance procedure if you are a member of labor organization). You can also express your concern to the Drug and Alcohol Program Manager (DAPM) for the DOT agency that regulates you and your employer. The DAPM contact information can be found on our web site at http://www.dot.gov/ost/dapc/oamanagers.html.

Pull Quote: The drug and alcohol testing regulations are not a place for you to practice law without a license