Employees regulated by U.S. Department of Transportation (DOT) drug and alcohol testing regulations are required to report for drug or alcohol tests within a reasonable amount of time as determined by the employer. A failure to show up or significant delay in reporting for testing may be deemed a “refusal to test,” as a municipal transit system employee learned in a recent decision of a federal appeals court in New Orleans, rejecting his claim under the Americans With Disabilities Act (ADA) and analogous state law. Leaumont v. City of Alexandria, 2014 U.S. App. LEXIS 17930 (5th Cir., No. 14-30330, Sep. 18, 2014)(summary calendar).

The court held that a city bus department transit manager had no claim under the ADA for being suspended from safety-sensitive duties after he failed to report for a DOT-required random drug test and unsuccessfully sought to make it up the following day.

A personnel analyst for the City notified the employee that he had had to take a random drug test that day pursuant to the City’s substance abuse policy, but the employee did not report for a specimen collection. The next day he called the analyst to tell her he had forgotten to report for the test. She set up another test for the following day, which the employee attended and at which he provided a specimen, which tested negative. Nevertheless, his failure to appear at the originally scheduled test was deemed a “refusal to test.” He was suspended from performing safety-sensitive duties and was told he would be eligible for reinstatement only after a substance abuse professional evaluated him and deemed him eligible to return to work and he provided a negative drug test sample. A few weeks later the employee complied and was returned to his safety-sensitive duties.

The employee then brought state court suit for compensatory damages and to expunge his personnel record of the missed test incident, but the suit was removed to federal court as stating a claim under the ADA (as well as state anti-discrimination law), a conclusion in which the circuit court concurred.

The court of appeals found that a discrimination claim could not succeed under the ADA or state law in these circumstances. The plaintiff employee no longer was a “qualified” individual for the safety-sensitive job he had held, as a matter of law, once he failed to appear for the original random drug test, because DOT regulations forbade an employee who refused to submit to a required drug test to continue to perform such duties, 49 CFR § 655.49(a) (Federal Transit Administration regulations). Furthermore, the regulations also prohibited the employee from returning to those duties until approved to do so by a substance abuse professional and submitting a negative drug test result. 49 CFR § 40.305(a).

The court noted that DOT regulations define a “refusal to test” as a “[f]ail[ure] to appear for any test … within a reasonable time, as determined by the employer, consistent with the applicable DOT agency regulations, after being directed to do so by the employer.” 40 CFR § 40.191(a)(1)(emphasis added). Here, the employer’s substance abuse policy required the employee to “report immediately to the collection site” after being notified of a test. Although the court of appeals agreed with the lower court that under “certain hypothetical circumstances” a direction to report “immediately” upon being notified might prove unreasonable, it concluded “it is not unreasonable to require the employee to report within the same day he is notified.” The employee failed to do that.

The court made short work of the employee’s remaining arguments. It found his claimed “unforeseen circumstances” exception to the requirement to report for testing as directed by the employer unsupported by any case law; and even if there were such an exception, the court said, merely forgetting to show up, which the employee conceded was the reason for his refusal, would not satisfy it. Neither could the employee point to any authority supporting his position that by scheduling a second test, the city waived or nullified the federal reporting-for-test requirement. The court of appeals affirmed summary judgment in favor of the City.

Employers’ substance abuse policies should address the amount of time employees will be given to report for a random drug test, and should ensure that managers are trained to enforce those rules. A failure to report or excessive delay in reporting for drug and alcohol testing must be treated as a refusal to test under DOT regulations, and should be treated in a similar manner in non-DOT testing .