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Under 49 CFR Part 40.265, if an employee does not provide sufficient breath to permit a valid breath test, the Breath Alcohol Technician (BAT) must contact the Designated Employer Representative (DER). The DER must direct the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to the DER and has expertise in the medical issues raised by the employee's failure to provide a sufficient breath specimen.

The employer is required by 49 CFR 40.265(c)(1) to notify the evaluating physician that the employee was unable to provide enough breath to complete a DOT alcohol test, and the consequences for refusing to take the required alcohol test (to include immediate removal from performing safety-sensitive functions). The employer must also instruct the evaluating physician to provide a signed statement of their conclusions on whether the employee has a medical condition that had, or likely had, precluded them from providing a sufficient breath specimen.

The DER may not remove the employee from a safety-sensitive function based on the initial screening test result. Per 49 CFR 40.265, the final determination will be made by the evaluating licensed physician, who must provide a written statement of their conclusions directly to the DER. If the evaluating physician determines the employee has a valid medical explanation for their failure to provide a specimen, the employer must cancel the test. Otherwise, the result is a refusal to test. Employers should follow these steps to handle each case with consideration for unique circumstances, accuracy, fairness, and compliance in mind.