Workplace drug testing when you cannot produce a sample

If a test is coming, start here. Not being able to go is not a surprise to the people who wrote the rules. There is a written procedure for exactly this. It gives you time, and it ends with a decision made by named people in a set order.

This page walks through that order in plain English. Where the exact wording is the point, the rule is quoted. Everywhere else there is a marker like [49 CFR 40.3] — tap it and you get the full text on the sources page.

The short version

Not being able to go does not, by itself, put anybody in the room with you. You get a second attempt, and for a urine test up to three hours, with water. [49 CFR 40.193(b)(1)(ii)] Declining the water is not a refusal, and neither is failing to fill the cup.

If nothing comes, the clock runs out and you are sent for a medical evaluation. [49 CFR 40.193(c)] The doctor you see recommends; a medical review officer decides; your employer is told the answer and, on the ordinary route, not the medical detail behind it.

Two situations still end with someone watching, and neither of them is about your bladder. Both are below, because it is better to know now than in the room.

And the one thing that helps most is not something you do on the day. It is having this written down with a doctor beforehand.

Does this rule apply to you?

Almost all of what follows is 49 CFR part 40, made by the US Department of Transportation. It reaches a narrow group of people:

This part concerns the activities of transportation employers, safety-sensitive transportation employees…

That is the whole of its reach — transport employers, their safety-sensitive staff, and the firms that run the tests. It is not the rule for US workplaces in general, and it is not the rule anywhere else. If your employer is not a DOT-regulated transportation employer, none of this binds them. Two other published US procedures are built on the same pattern, and this page does not walk through them. The HHS Mandatory Guidelines cover federal agency staff and offer the same water over the same three hours. [HHS Mandatory Guidelines, Sec. 8.6] The Nuclear Regulatory Commission's fitness-for-duty rule gives "shy" bladder a section of its own. [10 CFR 26.119]

We looked for the same kind of published procedure in other countries and found almost nothing. What little there is sits at the foot of this page. That is what the looking turned up, not proof that nothing else exists.

Three people, and it matters which is which

Three roles do all the work in what follows.

The collector is the person at the collection site. The DER is your employer's own representative — the firm running the test cannot be one. The MRO is a medical review officer, and a licensed physician. [49 CFR 40.3]

Keep them apart as you read. Most of what people get wrong about this rule is handing one of them a decision that belongs to another.

Will someone be watching?

People say "supervised" for three different arrangements. The rule only names two of them.

The ordinary one is a room with a door, and you alone in it.

The first, and preferred, type of facility for urination that a collection site may include is a single-toilet room, having a full-length privacy door, within which urination can occur.

A directly observed collection means someone watches. Your employer must order one in four situations, and every one of them follows something that has already gone wrong with an earlier test: an invalid specimen with no medical explanation, a cancelled positive, adulterated or substituted result whose split sample could not be tested, a negative-dilute result at the very low end, or an observation that should have happened and did not. [49 CFR 40.67(a), (b)] The collector's own list is just as closed: a direction from the DER, signs of tampering, a specimen out of temperature range, or a return-to-duty or follow-up test. [49 CFR 40.67(c)]

Read those lists for what is not on them. Being unable to give a sample is not there.

A monitored collection means someone is in the room but does not watch. The rule allows it in one situation and says so in as many words:

…you must conduct a monitored collection. This is the only circumstance in which you must conduct a monitored collection.

That situation is a multi-stall restroom where the taps and other water cannot be secured. If a collection is going to be observed, you are owed a reason: your employer must give one [49 CFR 40.67(d)(1)] and the collector must too, where the reason is known. [49 CFR 40.67(d)(2)] Turning down an observed collection is a refusal to test, [49 CFR 40.67(m)] and so is turning down a monitored one. [49 CFR 40.69(h)]

Two ways an observer can still appear

Neither list has room on it for someone who simply cannot go. But two things that are on them reach people who cannot go, and they are worth knowing about.

A return-to-duty or follow-up test is watched anyway. It is the last item on both lists. Your employer must order it and the collector must carry it out, and nothing about your bladder changes either duty. [49 CFR 40.67(c)] If an earlier test went wrong, this is the category you are most likely to be in.

Temperature is the other one. Whatever you do manage is checked before it is set aside, against the same range as a full cup:

(b) Temperature. You must check the temperature of the specimen no later than four minutes after the employee has given you the specimen. (1) The acceptable temperature range is 32-38 °C/90-100 °F. [...] (5) If the specimen temperature is outside the acceptable range, you must immediately conduct a new urine collection using direct observation procedures (see § 40.67) or an oral fluid collection.

So a few drops are not simply thrown away. They are measured first, and a reading outside that range takes the whole thing out of the shy-bladder procedure and into an observed collection or an oral fluid one. How often that happens, the rule does not say, and neither will this page.

If nothing comes

You get another go. Whether the second attempt can be a different kind of sample — oral fluid instead of urine — is set by your employer's instructions, not by what you ask for. [49 CFR 40.193(a)] The rule allows oral fluid, but a DOT test can only use laboratories that the US Department of Health and Human Services has certified for it, and when this page was last checked its list of those was empty. Whether that has changed by the time you read this is something to check, not assume. [HHS certified laboratories, oral fluid]

For urine, the clock is three hours, and you are offered water:

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.

Two things there are worth holding on to. Turning down the water is not a refusal. And the collector is told to inform you when the three hours start and finish — a duty on them, not a right you can enforce.

That water is offered in the room, over the three hours, and that is where it belongs. Loading up in the hours before is a different thing, and it can go wrong in two directions. A sample can come back negative but dilute — too watery, by two laboratory measures the rule sets. [49 CFR 40.88(a)] At the bottom of that band, a negative-dilute result is the third item on the observation list above. The employer must recollect at once, and under direct observation. Higher in the band the employer may ask for another sample, but not a watched one. [49 CFR 40.197(b)] The other direction is medical. A case report in a medical journal, the first of its kind by its authors' account, ends this way:

For workers undergoing urine drug testing we conclude that risk factors for acute water intoxication include (1) intake of more than 1 L of water and (2) impaired urine dilution.

The rule's own figure is the one quoted above, offered in the room and spread over the three hours. It is not an invitation to start at breakfast.

When the three hours run out the collector stops, writes down what happened, and tells the DER. [49 CFR 40.193(b)(1)(iv)] Nothing has been decided about you at that point. If the attempt was an oral fluid one, the window is an hour rather than three, and it closes the same way. [49 CFR 40.193(b)(2)(ii)]

Two roads, and two different decision-makers

Here is the part that gets told wrong. What happens next depends on whether you could not go or would not stay. Different roads, different people at the end of them.

If you could not go

Your employer consults the MRO and sends you for an evaluation by a licensed physician, within five days. [49 CFR 40.193(c)]

That doctor does not decide the outcome. They recommend one of two things: that a medical condition did, or with a high degree of probability could have, stopped you producing enough — or that there is not an adequate basis for saying so. [49 CFR 40.193(d)] The first is a cancelled test. The second is recorded as a refusal.

The MRO makes the actual determination:

…you must seriously consider and assess the referral physician's recommendations in making your determination…

So it runs one way only: a doctor recommends, the MRO determines, your employer is told. The rule uses the words "shy bladder" itself, in the section on notifying a refusal. [49 CFR 40.191(d)]

What that doctor may write about you is limited:

You must not include in this statement detailed information on the employee's medical condition beyond what is necessary to explain your conclusion.

That is a duty on the doctor rather than a right you can enforce, but it is worth knowing that the rule expects your employer to get a conclusion and not a file.

The rule also says what counts as a medical condition here, and the wording repays a slow read:

(e) For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction in the case of a urine test or autoimmune disorder in the case of an oral fluid test), or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of “situational anxiety” or dehydration.

Notice which word goes with which half. A physical condition has to be ascertainable. A psychological one has to be documented and already there. The rule says what the category is. It does not promise that a diagnosis on paper will carry the day.

For most people, a cancelled test on medical grounds is the end of it:

…you take no further action with respect to the employee.

If the test was a pre-employment, return-to-duty or follow-up one, a cancelled test is not a negative one either: your employer cannot let you start or return to safety-sensitive work on it, and can send you for another collection.

[49 CFR 40.207(a)]

The quoted sentence is also written about one specific paragraph of the rule, and it is a limit rather than a promise to everyone. Three kinds of test have a further step.

Pre-employment, return-to-duty and follow-up tests

For those three only, and only where the doctor finds a serious and permanent or long-term disability likely to stop you producing a sample for a very long or indefinite time, the case is handed on to a different section.

[49 CFR 40.193(g)]

That section asks a different question. Not whether you could produce a sample — that is already accepted — but whether there is clinical evidence that you use illicit drugs. The MRO makes that call, and the MRO or the examining doctor may use another kind of test, such as blood, to answer it. [49 CFR 40.195(a)]

If the answer is no, you get a negative test. If the answer is yes, you get a cancelled one, and the rule is blunt about what a cancelled test does not do:

Because this is a cancelled test, it does not serve the purposes of a negative test (i.e., the employer is not authorized to allow the employee to begin or resume performing safety-sensitive functions, because a negative test is needed for that purpose).

On this road, in other words, the good result is a negative test and a cancelled one is not enough to start work or go back to it. If your test is being run for one of those three reasons, that is the paragraph to read before the day.

Until the MRO's determination exists, not giving enough sample is not a refusal. [49 CFR 40.191(a)(5)] One thing does become a refusal on its own, though: not turning up to the evaluation you were sent for. On a pre-employment test that only counts against you if the test followed a job offer conditional on passing it; where there was no such offer, the MRO cancels the test instead.

[49 CFR 40.191(a)(7)]

If you walked out, or would not try

Different road, different decider. The collector stops and notifies the DER, and then:

…the employer decides whether the situation is deemed to be a refusal.

The person in the room does not make that call:

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

Neither does the firm that runs the test:

…you must not make a determination that an employee has refused a drug or alcohol test. This is a non-delegable duty of the actual employer.

There is a narrow exception to that: a self-employed person who does not turn up for a scheduled test, and an MRO's finding that a sample was adulterated or substituted. [49 CFR 40.355(j)]

Where a refusal is found, the consequences are the ones the DOT agency's own rules set, and there is one place they cannot be undone:

The consequences specified under DOT agency regulations for a refusal cannot be overturned or set aside by an arbitration, grievance, State court or other non-Federal forum…

That is about the DOT consequence. It says nothing about your employer's own disciplinary decision, which is a separate matter.

Outside the United States

One other regulator turned up naming the situation at all, and what it says is small. The Canadian Nuclear Safety Commission expects the sites it licenses to have collection procedures, and lists this among the things those procedures should cover:

Procedures for the administration of drug-testing collection and transportation of specimens should include or make reference to the following: [...] protocols for shy bladder and dry mouth [...]

The brackets stand for ten other bullets in the same list — kits, chain of custody, storage, transport, refusal to test, collector training. It sits under a heading reading Guidance, so it is what a site should do rather than what it must, and it covers Canadian nuclear licensees rather than Canadian workplaces generally.

The week before, not the morning of

The rule's own word is "documented". [49 CFR 40.193(e)] The section covering permanent and long-term conditions, the one those three test reasons lead to, puts a date on that word:

…permanent or long-term medical conditions are those physiological, anatomic, or psychological abnormalities documented as being present prior to the attempted collection, and considered not amenable to correction or cure for an extended period of time, if ever.

Present before the collection was attempted. A note already sitting in your record is a different thing from something said out loud for the first time in a collection room, and getting it there is a conversation with a doctor rather than with an employer. The time for that conversation is now, not the week of the test.

What that looks like on the day is paper. If you are sent for the evaluation, take the record with you: a dated letter from the clinician who treats you, written before the test, and the history of any treatment. The rule asks for a disorder that is documented and already there. [49 CFR 40.193(e)] The doctor you are sent to is chosen for expertise in exactly this question, [49 CFR 40.193(c)] so expect to be assessed rather than taken at your word.

Two cautions, and they matter. The examples the rule gives of a long-term condition are severe ones — kidney failure, a damaged urinary tract, a severe psychiatric disorder focused on genito-urinary matters — and that is not a description of most people who have this. [49 CFR 40.195(d)] And nobody can tell you how any of it will land in your case.

If saying it out loud is the hard part, there is a sheet for that.

Getting help covers what to ask for once you are in the room.