Under 49 CFR 40.265(b), the BAT or STT instructs the employee to try again and explains the proper way to provide breath. If the employee refuses to make the attempt, the technician stops the test, notes it on the Remarks line of the ATF and notifies the DER, and that is a refusal to test.
If the employee tries again and fails, the technician may allow another attempt when there is a strong likelihood that it could produce enough breath. After the attempts fail, the technician notes this on the ATF and immediately notifies the DER. An EBT that can operate manually may be used in manual mode, and a technician qualified on a saliva ASD may switch to one, but only to complete a screening test.
Under 40.265(c), the employer then directs the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to the employer and has expertise in the medical issues raised. The employer tells the physician that the employee could not complete a required DOT breath alcohol test and explains the consequences of a refusal under the applicable DOT agency rule.
Under 40.265(c)(2), the physician gives the DER a written statement of the conclusions directly, not through a C/TPA. Under 40.265(c)(1)(iv), if a medical condition has, or with a high degree of probability could have, kept the employee from providing enough breath, the test is cancelled. If there is not an adequate basis for that finding, the result is a refusal to test. A medical condition includes an ascertainable physiological condition, such as a respiratory system dysfunction, or a medically documented pre-existing psychological disorder, but not unsupported claims of situational anxiety or hyperventilation.
Under 49 CFR 40.261(a)(5), failing to undergo the medical evaluation directed by the employer is also a refusal. Other refusal grounds are covered in What Counts as Refusing a DOT Alcohol Test?.
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