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§ 40.261 What is a refusal to take an alcohol test, and what are the consequences?

Cross Reference

Link to an amendment published at 88 FR 27649, May 2, 2023.

(a) As an employee, you are considered to have refused to take an alcohol test if you:

1. Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see § 40.241(a));

2. Fail to remain at the testing site until the testing process is complete; provided that an employee who leaves the testing site before the testing process commences (see § 40.243(a)) for a pre-employment test is not deemed to have refused to test;

3. Fail to provide an adequate amount of saliva or breath for any alcohol test required by this part or DOT agency regulations; provided that an employee who does not provide an adequate amount of breath or saliva because he or she has left the testing site before the testing process commences (see § 40.243(a)) for a pre-employment test is not deemed to have refused to test;

4. Fail to provide a sufficient breath specimen, and the physician has determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see § 40.265(c));

5. Fail to undergo a medical examination or evaluation, as directed by the employer as part of the insufficient breath procedures outlined at § 40.265(c);

6. Fail to sign the certification at Step 2 of the ATF (see §§ 40.241(g) and 40.251(d)); or

7. Fail to cooperate with any part of the testing process.

(b) As an employee, if you refuse to take an alcohol test, you incur the same consequences specified under DOT agency regulations for a violation of those DOT agency regulations.

(c) As a BAT or an STT, or as the physician evaluating a “shy lung” situation, when an employee refuses to test as provided in paragraph (a) of this section, you must terminate the portion of the testing process in which you are involved, document the refusal on the ATF (or in a separate document which you cause to be attached to the form), and immediately notify the DER by any means (e.g., telephone or secure fax machine) that ensures the refusal notification is immediately received. You must make this notification directly to the DER (not using a C/TPA as an intermediary).

(d) As an employee, when you refuse to take a non-DOT test or to sign a non-DOT form, you have not refused to take a DOT test. There are no consequences under DOT agency regulations for such a refusal.

§ 40.263 What happens when an employee is unable to provide a sufficient amount of saliva for an alcohol screening test?

(a) As the STT, you must take the following steps if an employee is unable to provide sufficient saliva to complete a test on a saliva screening device (e.g., the employee does not provide sufficient saliva to activate the device):

1. You must conduct a new screening test using a new screening device.

2. If the employee refuses to make the attempt to complete the new test, you must discontinue testing, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test.

3. If the employee has not provided a sufficient amount of saliva to complete the new test, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER.

(b) As the DER, when the STT informs you that the employee has not provided a sufficient amount of saliva (see paragraph (a)(3) of this section), you must immediately arrange to administer an alcohol test to the employee using an EBT or other breath testing device.

§ 40.265 What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?

(a) If an employee does not provide a sufficient amount of breath to permit a valid breath test, you must take the steps listed in this section.

(b) As the BAT or STT, you must instruct the employee to attempt again to provide a sufficient amount of breath and advise them on the proper way to do so.

1. If the employee refuses to make the attempt, you must discontinue the test, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test.

2. If the employee again attempts and fails to provide a sufficient amount of breath, you may provide another opportunity if you believe there is a strong likelihood that it could result in a sufficient breath sample.

3. When the employee's attempts under paragraph (b)(2) of this section have failed, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER.

4. If you are using an EBT that has the capability of operating manually, you may attempt to conduct the test in manual mode.

5. If you are qualified to use a saliva ASD and are in the screening test stage, you may switch to a saliva ASD only to complete the screening test.

(c) As the employer, when the BAT or STT informs you that the employee has not provided a sufficient amount of breath, you must direct the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to you and has expertise in the medical issues related to the failure.

1. You are required to provide the physician with the following:

i. Notification that the employee was required to take a DOT breath alcohol test but was unable to provide a sufficient amount of breath;

ii. The consequences under DOT agency regulations for refusing to take the test;

iii. Instructions that the physician must provide you with a signed statement of conclusions; and

iv. That the physician, using reasonable medical judgment, must determine:

* (A) A medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient breath sample. Detailed medical information must not be included. In this case, the test is cancelled.

* (B) There is not an adequate basis for determining that a medical condition precluded the employee. This constitutes a refusal to test.

* (C) For purposes of (A) and (B), a medical condition includes a physiological issue (e.g., a respiratory dysfunction) or a documented psychological disorder, but does not include unsupported claims such as “situational anxiety” or hyperventilation.

2. As the physician, after making your determination, you must provide a written statement with your conclusions and reasoning directly to the DER (not through a C/TPA acting as an intermediary). Do not include unnecessary detailed medical information.

3. Upon receipt of the physician’s report, the DER must immediately inform the employee and take action per DOT agency regulations.

§ 40.267 What problems always cause an alcohol test to be cancelled?

You must cancel an alcohol test if any of the following “fatal flaws” occur. Inform the DER that the test was cancelled and must be treated as if it never occurred:

(a) Screening test with saliva ASD or breath tube ASD:

1. The STT or BAT reads the result either too soon or too late per manufacturer and Part 40 requirements (see § 40.245(a)(8) and § 40.245(b)(8)).

2. The saliva ASD does not activate (see § 40.245(a)(7)).

3. The device is used after its printed expiration date (see § 40.245(a)(1) and (b)(1)).

4. The breath tube ASD is tested with an analyzer not pre-calibrated for the device’s specific lot (see § 40.245(b)(1)).

(b) Screening or confirmation test on an EBT:

* The test number or alcohol concentration displayed does not match the printed result (see § 40.253(c), (e), (f)).

1. The confirmation test is conducted before the end of the required 15-minute waiting period (see § 40.251(a)(1)).

2. The BAT does not conduct an air blank before the confirmation test (see § 40.253(a)).

3. The air blank does not show a 0.00 result (see § 40.253(a)(1) and (2)).

4. The EBT fails to print the result (see § 40.253(f)).

5. The next external calibration check result differs beyond QAP tolerance from the test standard. All results ≥0.02 since the last valid check are cancelled (see § 40.233(a)(1) and (c)(3)).

§ 40.269 What problems cause an alcohol test to be cancelled unless they are corrected?

As a BAT, STT, or employer, you must cancel an alcohol test if any of the following problems occur unless they are corrected. These are considered "correctable flaws":

(a) The BAT or STT does not sign the ATF (see §§ 40.247(a)(1) and 40.255(a)(1)).

(b) The BAT or STT fails to note on the “Remarks” line of the ATF that the employee has not signed the ATF after the result is obtained (see § 40.255(a)(3)).

§ 40.271 How are alcohol testing problems corrected?

(a) As a BAT or STT, you have the responsibility of attempting to complete an alcohol test successfully for each employee.

1. If, during or shortly after the testing process, you become aware of any event that would cause the test to be cancelled (see § 40.267), you must attempt to correct the problem promptly, if practicable. You may repeat the testing process as part of this effort.

2. If repeating the test is necessary, you must begin a new test as soon as possible. Use a new ATF, a new sequential test number, and, if needed, a new ASD and/or a new EBT. You may use additional technical capabilities of the EBT (e.g., manual mode) if trained under § 40.213(c).

3. You are not limited in the number of attempts to complete the test, provided the employee is making a good faith effort to comply.

4. If no other testing device is available at the site, you must immediately notify the DER and advise that the test could not be completed. As the DER, you must make all reasonable efforts to ensure the test is conducted at another site as soon as possible.

(b) If you (STT, BAT, employer, or other service agent) become aware of a “correctable flaw” (see § 40.269) that has not already been corrected, you must take all practicable steps to correct it so the test is not cancelled.

1. If the problem results from missing required information, you (as the person responsible) must supply the missing information in writing along with a signed statement that it is true and accurate.

Example: If you forgot to note that the employee didn’t sign the certification, submit a signed statement confirming the employee refused or failed to sign after the result was obtained.

2. If a non-DOT form was used, you (as the person responsible) must certify in writing that the incorrect form includes all information needed for a valid DOT alcohol test. You must also include a signed statement that the form was used inadvertently or due to circumstances beyond your control, and describe steps taken to prevent future use of incorrect forms. This must be submitted on the same business day you are notified of the problem, via fax or courier.

§ 40.273 What is the effect of a cancelled alcohol test?

(a) A cancelled alcohol test is neither positive nor negative.

1. As an employer, you must not apply the consequences of a test result of 0.02 or greater (e.g., removal from a safety-sensitive position) to a cancelled test.

2. You must not use a cancelled test in situations where a test result below 0.02 is required (e.g., return-to-duty or follow-up tests for safety-sensitive functions).

3. You must not direct a recollection because a test was cancelled, except in the situations specified in paragraph (a)(2) or other provisions of this part.

(b) A cancelled test does not count toward compliance with DOT testing requirements (e.g., random testing quotas).

(c) If you are the BAT, STT, or person responsible for cancelling the test, you must inform the DER within 48 hours of the cancellation.

(d) A cancelled DOT test does not provide a valid basis for an employer to conduct a non-DOT (company-authorized) test.

§ 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test?

(a) As an STT, BAT, employer, or service agent administering the process, you must document any testing errors, even if they are not “fatal flaws” or “correctable flaws.” The impact of such errors will be determined in administrative or legal proceedings, subject to paragraph (b).

(b) No individual involved in the testing process may cancel a test due to a mistake that does not significantly affect the employee’s right to a fair and accurate test.

Examples of insufficient reasons for cancellation:

* Minor administrative errors (e.g., omission of employee’s middle initial)

* Employee's claim of improper selection for testing

* Employee’s failure to sign Step 4 of the ATF

(c) Even though such errors do not cancel the test, they may subject the employer to enforcement actions under DOT regulations.

§ 40.277 Are alcohol tests other than saliva or breath permitted under these regulations?

No. Other types of alcohol tests (e.g., blood or urine) are not authorized under this part. Only the following are permitted:

* Saliva or breath for screening tests

* Breath for confirmation tests using approved devices

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