Drugs: Refusal to Take Drug Test

Melville Johnson PC

October 23, 2020

How does a federal agency enforce the rules against the use of drugs that takes place off duty, particularly if a federal employee is smart enough not to come to work under the influence? The answer is simple: drug tests. If an employee refuses such a drug test, then the agency can remove or otherwise discipline that employee for Drugs: Refusal to Take Drug Test.

To prove this charge, an agency must show that: (1) the employee was given a order to take a test; (2) the order was lawful; (3) the order was refused; and (4) the refusal was without justification. This charge has been treated by the Merit Systems Protection Board (“MSPB”) as the equivalent of insubordination charges. Please see our previous blog post on Insubordination.

Defenses to this charge include arguing that proper procedures were not followed in ordering a drug test, that the employee was not in a position subject to drug testing, the agency did not follow relevant Executive Orders, and that the refusal was not proven. Procedural issues, however, will not necessarily invalidate this charge, but will at least serve to mitigate the penalty. Executive Orders can be important to consult in raising a defense. For instance, by Executive Order, the Department of Transportation must utilize split testing in drug testing its employees.

It is important to note the constitutional challenges are treated differently here as employees are expected to “obey now, grieve later” even if there is a reasonable belief that an order to take a test is unconstitutional.

The attorneys at Melville Johnson, P.C. exclusively represent federal employees and are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Give us a call today 404 724 0000.

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This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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