Under 49 CFR 40.261(a), an employee refuses an alcohol test by failing to appear for any test other than a pre-employment test within a reasonable time after being directed by the employer, including an owner-operator called by a C/TPA, by failing to remain at the testing site until the process is complete, or by failing to provide an adequate amount of saliva or breath for any required test.
The list also includes failing to provide a sufficient breath specimen when a physician has found no adequate medical explanation, failing to undergo a medical evaluation directed by the employer under the insufficient breath procedures, failing to sign the Step 2 certification on the ATF, and failing to cooperate with any part of the testing process. An employee who leaves before a pre-employment test begins has not refused.
Not every missing signature is a refusal. Under 49 CFR 40.255(a)(3), an employee who does not sign Step 4 of the ATF after a result of 0.02 or higher has not refused, and the BAT notes it on the Remarks line. Under 40.261(d), refusing a non-DOT test or to sign a non-DOT form is not a refusal of a DOT test.
Under 40.261(c), the technician documents the conduct on the ATF and notifies the DER directly and immediately, but the employer has the sole responsibility to decide whether a refusal occurred. Under 40.261(b), a refusal carries the same consequences as a violation of DOT agency rules, which cannot be overturned by arbitration, grievance, state court or another non-federal forum. For CDL drivers, 49 CFR 382.211 bars refusing a required post-accident, random, reasonable suspicion, return-to-duty or follow-up alcohol test, and the employer may not let a driver who refuses perform safety-sensitive functions. Drug test refusals are covered in What Counts as Refusing a DOT Drug Test?.
The National filter in the MyDrugTesting.com directory can be applied to Alcohol Testing listings.
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