When an Employee Won’t Cooperate With a Drug Test: What Employers Need to Know About Refusals

An employee is sent for a required drug test. They arrive at the collection site, and then things start going wrong. They refuse to empty their pockets, do not follow the collector’s instructions, become confrontational, and leave before the collection is completed.

Is it automatically a refusal to test?

For DOT-regulated employers, the answer is more complicated than many employers realize. The collector has an important role in documenting what happened, but in most collection-site situations, the collector does not make the final decision that an employee refused a DOT test.

The employer does. And getting that decision wrong can create a serious compliance problem.

When a Drug Test Becomes Difficult

Most drug tests are completed without incident. Occasionally, however, an applicant or employee becomes impatient, refuses instructions, challenges the collector or attempts to leave before the collection process is complete.

For employers, the problem is not simply an inconvenient or disruptive employee. The real problem is determining what happens next. Was the employee merely difficult? Did the employee fail to cooperate? Did the conduct meet the regulatory definition of a refusal?

And most importantly: who has the authority to make that decision?

DOT Testing Has Specific Refusal Rules

For DOT-regulated drug testing, 49 CFR § 40.191 identifies conduct that can constitute a refusal to test. Examples include:

• Failing to appear for certain required tests within a reasonable time.
• Failing to remain at the testing site until the testing process is complete.
• Failing to provide a required specimen.
• Refusing to permit an observed or monitored collection when one is required.
• Failing or declining to take an additional test when properly directed.
• Failing to undergo a required medical examination or evaluation.
• Failing to cooperate with the testing process.
• Refusing to empty pockets when instructed.
• Engaging in confrontational behavior that disrupts the collection.
• Failing to follow required procedures during an observed collection.
• Possessing a device intended to interfere with the collection process.

Not every difficult interaction automatically means the employee has refused a DOT test. That distinction matters, and it is the reason the determination cannot be made at the collection site by someone watching the behavior unfold.

What Does the Collector Do?

When conduct occurs during a DOT collection that may constitute a refusal, the collector has specific responsibilities. Under 49 CFR § 40.191, the collector must document the actions that may constitute a refusal in the Remarks section of the Federal Drug Testing Custody and Control Form, sign and date the form, and immediately notify the Designated Employer Representative when required. The collector should document what occurred objectively and thoroughly.

But in most collection-site refusal situations, the collector does not make the final refusal determination.

The collector does not make the final decision about whether the employee’s conduct constitutes a refusal to test; the employer has the sole responsibility to decide whether a refusal occurred, and has a non-delegable duty to make that decision.

49 CFR §§ 40.191(d), 40.355(i)

That responsibility belongs to the actual employer and generally cannot be delegated to a collection site, C/TPA, or other service agent. There are limited exceptions under the DOT regulations, including certain determinations involving owner-operators and MRO determinations involving adulterated or substituted specimens.

The same allocation applies to alcohol testing. Under 49 CFR § 40.261, the Breath Alcohol Technician or Screening Test Technician notes the conduct in the Remarks line of the Alcohol Testing Form, signs and dates it, and the employer makes the determination.

Why Documentation Matters

Imagine receiving this call: “Your employee was uncooperative and left the collection site.”

What does “uncooperative” mean? Did the employee refuse an instruction, or was the testing process already complete? Was there a medical emergency? Did the employee receive permission to leave? What exactly did the collector say, and what exactly did the employee do?

Those details can determine whether the conduct constitutes a DOT refusal. DOT guidance makes clear that when the employer must make a collection-site refusal determination, the employer should consider the information documented on the CCF, information provided by the collector or other service agents, and relevant supporting information provided by the employee. The employer should also document the decision and the reasoning supporting it.

One point in that guidance is worth stating plainly, because employees and their representatives frequently argue the opposite. If the collector does not tell an employee that leaving the site constitutes a refusal, that silence is not permission to leave. The obligation to remain until the process is complete does not depend on being warned about it.

If one of your employees walked out of a collection site today, would your DER know exactly what to do next?

“I’m Not Signing Anything”

An employee refusing to sign paperwork does not always have the effect employers assume. The consequences depend on what document is involved and whether the test is DOT-regulated or non-DOT. DOT regulations specifically provide that refusing to sign a non-DOT form does not constitute a refusal of a DOT test, and carries no consequences under DOT agency regulations.

Collectors should therefore follow the procedure applicable to the specific testing program rather than treating every refusal to sign, argue or cooperate as identical. The facts matter, the regulations matter, and the employer’s policy matters.

DOT and Non-DOT Refusals Are Not the Same

This is another area where employers can get into trouble. 49 CFR Part 40 governs DOT-regulated testing, while a non-DOT workplace drug test is generally governed by the employer’s written policy together with applicable federal, state, and local law. Employers should not automatically apply DOT refusal rules to their entire workforce simply because they also employ DOT-regulated workers.

Your policy should clearly identify:

• What constitutes a refusal.
• Who has authority to make the determination.
• What documentation is required.
• Who must be notified.
• What disciplinary consequences follow.
• Whether different procedures apply to DOT and non-DOT employees.

If those answers are unclear, the problem may not be the employee. It may be the policy.

The Cost of Getting a Refusal Wrong

A refusal determination can have significant consequences, particularly for a DOT-regulated employee. That is precisely why employers should not make these decisions casually.

Consider two opposite mistakes. An employer treats difficult behavior as a refusal when the regulatory requirements were not actually satisfied. Or an employer fails to recognize conduct that should have been handled as a refusal. Either situation can expose weaknesses in the company’s policy, DER training, collection procedures, and documentation.

The time to discover those weaknesses is not after a disputed drug test.

Could Your DER Handle This Tomorrow?

An employee leaves a collection site halfway through a test, and the collector calls your company to describe what happened.

Who receives that call? Does that person know what questions to ask, and whether the employee is DOT-regulated? Do they understand the difference between the collector documenting a potential refusal and the employer making the refusal determination? Do they know what must be documented?

And could your company defend that decision six months later during an audit, grievance, or employment dispute?

If you are not completely comfortable with those answers, your drug-testing program deserves a closer look.

NMS Can Help

NMS Screening & Compliance helps employers build and manage drug and alcohol testing programs that are clear, consistent and defensible.

Last reviewed: August 2026. DOT drug and alcohol testing regulations and other workplace testing requirements can change. Employers should verify current requirements applicable to their specific testing program.

This material is provided for educational and informational purposes only and is not legal advice.