Drug Test Refusal

Employees performing safety-sensitive functions, such as pilots and mechanics for commercial operators and air carriers, are subject to the FAA’s drug testing program.  It’s important for these individuals to appreciate the requirements of the drug testing program and the serious ramifications of a failed drug test.  Airmen who fail a drug test are removed from performing safety-sensitive functions, required to undergo a substance abuse evaluation, and required to complete counseling or treatment.  To make matters worse, airmen often are fired by their employer as a result of a failed test. 

It should be no surprise that the FAA and employers often treat a refusal to submit to a drug test as seriously as they treat a failed drug test.  The FAA can use the refusal as the basis to suspend or revoke any airman certificate held by the individual per 14 CFR 120.11(b). With such serious consequences, you should understand what the FAA and DOT consider to be refusal.

First, failure to appear for a drug test within a reasonable time of the request is considered a refusal per 49 CFR 40.191(a)(1).  Upon request, airmen are required to proceed to the collection site immediately, or as soon as possible if the airman is currently performing a safety-sensitive function. 

Refusal also includes failing to comply with all testing procedures.  Disrupting the collection process, being confrontational, and leaving the facility before the testing process is complete are all categorized as a refusal to test. In addition, some cases require direct observation or monitored collection to obtain a sample. Therefore, you should follow all instructions and remain at the facility until you are told that the testing process is complete and that you can leave, regardless of time constraints or commitments.

If an airman provides a sample smaller than the required amount, the collector should follow the “shy bladder” procedures outlined in 49 CFR 40.193.  This includes encouraging the airman to drink up to 40 ounces of fluid over a period of three hours, although the regulations provide that declining to drink is not in itself a refusal.  As frustrating as this scenario may be, it’s important that the airman work with the facility to give an adequate sample. If the airman is still unable to provide a sufficient sample after three hours, he will be asked to see a physician to determine if there is a medical condition preventing adequate production.  It there is no medical explanation, it will be characterized as a refusal to test.

If you believe there is an issue with the selection process or with the collection of the sample, you should not refuse the test.  Rather, you should notify the Designated Employer Representative and your employer after the test has been completed.  If you have any questions regarding a request to submit to a drug test, call the AOPA Pilot Protection Services–Legal Services Plan at 1-800-872-2672. 

Ray Carver
Legal Services Plan, Attorney
Ray is a staff attorney with AOPA’s Legal Services Plan. He counsels participating AOPA members on aviation-related legal matters. Ray is also a private pilot.

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