For collectors, Designated Employer Representatives (DERs), and Medical Review Officers (MROs), a “shy bladder” situation can be one of the more misunderstood problems that can occur during a DOT drug test.
A shy bladder is not automatically a refusal to test, and the collector, employer, and MRO each have specific responsibilities under 49 CFR Part 40. Knowing what must happen—and what must not happen—is essential to maintaining a compliant testing program.
Under 49 CFR §40.193, a shy bladder situation occurs when an employee is unable to provide the required specimen volume of 45 mL in a single void of urine. The insufficient specimen is discarded, and the employee is offered up to 40 ounces of water, distributed over the maximum wait period of up to three hours (§40.193(b)(1)(ii)). The employee does not have to accept the fluids as declining to drink is not, in itself, a refusal to test.
It is important to distinguish this from an employee simply refusing to provide a specimen. An employee who cannot initially provide enough urine must be given the opportunity to complete the collection according to the shy bladder procedure. However, if the employee refuses to make the attempt or leaves the collection site before the collection is complete, the collector must discontinue the collection, document what occurred on the CCF, and immediately notify the DER (§40.193(b)(1)(iii)), the DER will decide whether or not to deem this a refusal.
If the employee still has not provided a sufficient specimen within three hours of the first unsuccessful attempt, the collector must discontinue the collection and document this on the CCF, as none provided, and immediately notify the DER. The collector must STILL send the appropriate CCF copies to the MRO and DER by the next business day (§40.193(b)(3)).
Once the collection has ended without a sufficient specimen, the process moves to the DER and MRO. When the collector informs the DER that the employee was unable to provide a sufficient specimen, the DER must consult with the MRO. After consulting with the MRO, the DER must direct the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to the MRO (§40.193(c)).
The referral physician then makes one of two determinations which they pass on to the MRO:
1. A medical condition prevented the employee from providing a sufficient specimen
If the MRO accepts that recommendation, the MRO checks “Test Cancelled” on the CCF, signs and dates it, and reports the determination to the DER. (§40.193(d)(1))
2. There is not an adequate medical basis that prevented the employee from providing a sufficient specimen
If there is not an adequate basis for determining that a medical condition prevented the employee from providing the specimen, the MRO may determine that the situation constitutes a refusal to test.
If the MRO determines that a medical condition prevented the employee from providing a sufficient specimen, the test is cancelled. A cancelled test is neither a positive nor a negative test and the employer takes no further action with respect to the employee, and if the test reason was “random,” the employee remains in the random testing pool.
NOTE: there is an important distinction for employers and C/TPAs managing random programs here: as per 49 CFR §40.207(b)), a cancelled test does not count toward compliance with DOT requirements, including meeting the employer’s minimum annual random testing rate.
For DATAC members and Canadian professionals who support U.S. DOT testing programs, keeping a copy of 49 CFR §40.193 and §40.195 readily available is an excellent way to ensure that everyone involved understands their responsibilities when a shy bladder situation occurs.
