Texas Administrative Code › Title 43 - TRANSPORTATION › Part 1 - TEXAS DEPARTMENT OF TRANSPORTATION › Chapter 4 - EMPLOYMENT PRACTICES › Subchapter D - SUBSTANCE ABUSE PROGRAM › Section 4.39 - Refusal to Test

Current through Reg. 49, No. 28; July 12, 2024
(a) Termination for
				  refusal. An employee who refuses to test will be terminated from the
				  department.
(b) Characterization of
				  refusal.
An employee will be considered to have refused to test
					 under any of the following circumstances.
(1) The employee explicitly declines to take
				  a required test, whether a first test or a subsequent test.
(2) The employee fails to appear for an
				  alcohol or drug test, except a pre-employment test, within a reasonable time,
				  as determined by the department, after being directed to do so.
(3) The employee fails to remain at the
				  testing site until the testing process is complete. In the case of a
				  pre-employment test, a final applicant who leaves the testing site before the
				  testing process begins has not refused to test.
(4) The employee does not attempt to provide
				  a breath specimen for a required alcohol test or to provide a urine specimen
				  for a required drug test.
(5) The
				  employee does not permit the observation or monitoring of the employee's
				  provision of a specimen in the case of directly observed or monitored
				  collection.
(6) The employee fails
				  to provide a sufficient breath specimen or a sufficient amount of urine when
				  directed and there is no adequate medical explanation for the failure, as
				  determined through a required medical evaluation.
(7) The employee fails to undergo a medical
				  examination or evaluation that was directed by an appropriate official. In the
				  case of a pre-employment test, the final applicant has refused to test on this
				  basis only if the test is conducted after the final applicant has been given a
				  conditional offer of employment.
(8) The employee fails to sign the
				  certification at Step 2 of the Alcohol Testing Form.
(9) The employee fails to cooperate in any
				  part of the testing process, including refusing to empty pockets when so
				  directed by the collector, behaving in a confrontational way that disrupts the
				  collection process, fails to wash hands after being directed to do so by the
				  collector, or any other uncooperative behavior.
(10) The specimen contains levels of a
				  substance that is lower than expected for human urine, a specimen that contains
				  levels of a substance that are inconsistent with human urine, or a specimen has
				  a creatinine and specific gravity value lower than expected for human
				  urine.
(11) An employee does not
				  remain available for any mandatory alcohol or drug test.
(12) For an observed collection, the employee
				  fails to follow the observer's instructions to raise clothing above the waist,
				  lower clothing and underpants, or to turn around to permit the observer to
				  determine if the employee has any type of prosthetic or other device that could
				  be used to interfere with the collection process.
(13) The employee possesses or wears a
				  prosthetic or other device that could be used to interfere with the collection
				  process.
(14) The employee admits
				  to the collector or medical review officer that the employee adulterated or
				  substituted the specimen.