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Post reply to topic:  Behavior That Constitutes a Test Refusal

T O P I C     R E V I E W Randy Hogan Scenario: A rural transit system has been notified that a driver is to report the next day for random testing. The director, who is the contact person, determines the driver cannot be removed from his/her driving responsibilities and informs the TPA that the individual will not available for testing. The driver is never notified of the test. Question: If the transit director refuses the test, would that constitute a test refusal? FTA (Mike Redington) As stated in 49 CFR Part 655.17 the employer must notify a covered employee of the testing requirement. An employee cannot refuse to submit to testing it that employee has not been notified by the employer of the test requirement. Therefore, in this scenario, the covered employee would not have refused to submit to testing. An employee may be deemed to have refused in a post-accident situation if that employee fails to remain readily available for testing. §655.17 Notice requirement. Before performing a drug or alcohol test under this part, each employer shall notify a covered employee that the test is required by this part. §655.44 Post-accident testing. (c) A covered employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying the employer or the employer representative of his or her location if he or she leaves the scene of the accident prior to submission to such test, may be deemed by the employer to have refused to submit to testing.