Sec.  40.193  What happens when an employee does not provide a sufficient amount of urine for a drug test?

     (a) This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine to permit a drug test (i.e., 45 mL of urine).

    (b) As the collector, you must do the following:

    (1) Discard the insufficient specimen, except where the insufficient specimen was out of temperature range or showed evidence of adulteration or tampering (see Sec.  40.65(b) and (c)).

    (2) Urge the employee to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. It is not a refusal to test if the employee declines to drink.

Document on the Remarks line of the CCF (Step 2), and inform the employee of, the time at which the three-hour period begins and ends.

    (3) If the employee refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you must discontinue the collection, note the fact on the ``Remarks'' line of the CCF (Step 2), and immediately notify the DER. This is a refusal to test.

    (4) If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, you must discontinue the collection, note the fact on the ``Remarks'' line of the CCF (Step 2), and immediately notify the DER.

    (5) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You must send or fax these copies to the MRO and DER within 24 hours or the next business day.

    (c) As the DER, when the collector informs you that the employee has not provided a sufficient amount of urine (see paragraph (b)(4) of this section), you must, after consulting with the MRO, direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen. (The 

[[Page 639]] 

MRO may perform this evaluation if the MRO has appropriate expertise.)

    (1) As the MRO, if another physician will perform the evaluation, you must provide the other physician with the following information and instructions:

    (i) That the employee was required to take a DOT drug test, but was unable to provide a sufficient amount of urine to complete the test;

    (ii) The consequences of the appropriate DOT agency regulation for refusing to take the required drug test;

    (iii) That the referral physician must agree to follow the requirements of paragraphs (d) through (g) of this section.

    (2) [Reserved]

    (d) As the referral physician conducting this evaluation, you must recommend that the MRO make one of the following determinations:

    (1) A medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. As the MRO, if you accept this recommendation, you must:

    (i) Check ``Test Cancelled'' (Step 6) on the CCF; and

    (ii) Sign and date the CCF.

    (2) There is not an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. As the MRO, if you accept this recommendation, you must:

    (i) Check ``Refusal to test because'' (Step 6) on the CCF and enter reason in the remarks line; and

    (ii) Sign and date the CCF.

    (e) For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of ``situational anxiety'' or dehydration.

    (f) As the referral physician making the evaluation, after completing your evaluation, you must provide a written statement of your recommendations and the basis for them to the MRO. You must not include in this statement detailed information on the employee's medical condition beyond what is necessary to explain your conclusion.

    (g) If, as the referral physician making this evaluation in the case of a pre-employment test, you determine that the employee's medical condition is a serious and permanent or long-term disability that is highly likely to prevent the employee from providing a sufficient amount of urine for a very long or indefinite period of time, you must set forth your determination and the reasons for it in your written statement to the MRO. As the MRO, upon receiving such a report, you must follow the requirements of Sec.  40.195, where applicable.

    (h) As the MRO, you must seriously consider and assess the referral physician's recommendations in making your determination about whether the employee has a medical condition that has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. You must report your determination to the DER in writing as soon as you make it.

    (i) As the employer, when you receive a report from the MRO indicating that a test is cancelled as provided in paragraph (d)(1) of this section, you take no further action with respect to the employee.

The employee remains in the random testing pool. 

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]