The short answer is no, an employee may not drink fluids they bring with them to the collection site. We can suggest several rationales for that answer. One is that the employee should not drink more than 40 ounces of fluids; the collector does not have control over the amount of fluids the employee drinks if they allow the employee to drink what they brought with them. The other rationale is that allowing an employee to drink what they brought with them introduces the possibility of the employee ingesting a substance that might interfere with the drug test.
See the following guidance from a DOT Part 40 Question and Answer dated 7/2008.
“Are there any circumstances for which an employee should be given more than 3 hours and 40 ounces of fluids to provide a sufficient amount of urine during a collection?
No. The Department sees no situations for which an employee should be given more than 3 hours and offered more than 40 ounces of fluids to provide a sufficient amount of urine after the “first unsuccessful attempt” to do so [see §40.193(b)(4)].
• The Department regards the “first unsuccessful attempt” to be very first time the employee comes out of the urination area with less than 45 mL of urine.
• This is true about the “first unsuccessful attempt” even if a subsequent attempt during the three-hour period requires an immediate collection under direct observation because the specimen is outside the appropriate temperature range or shows signs of tampering [see §40.65(b)&(c)].
• For example: An employee presents an insufficient amount of urine at noon and is urged by the collector to drink up to 40 ounces of fluid distributed through a period of up to 3 hours (3 o’clock, in this example).
— At 2 o’clock, the employee indicates that he or she can now provide the specimen, enters the collection area, but returns with a specimen outside the acceptable temperature range.
— The collector immediately conducts an observed collection, but the employee – for the second time during this collection event, which began at noon – provides less than 45 mL of urine.
— The employee has up to 3 o’clock and any remaining fluids to provide an adequate amount of urine under direct observation: The employee is not given an additional three hours and is not offered an additional 40 ounces of fluids.
— If the employee ultimately fails to provide a sufficient amount of urine during the remaining time, the collector discontinues the collection, discards any specimen the employee previously provided, appropriately documents the CCF, and immediately notifies the DER and the MRO – following the requirements at §40.193(b)(4) and (b)(5).”
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