FAA Certificate Action After DOT Drug Test Refusal

Are you the subject of a FAA certificate action after DOT drug test refusal? Too often, refusals are the result of a shy bladder procedure gone awry.  Any airman or aviatrix in a safety-sensitive position knows that a poor outcome during a DOT drug test could be the end of his or her career. There are several ways that a random DOT urine drug test can result in a revocation of your certificates – the tests are returned as positive for one of the five drugs tested (THC, Cocaine, PCP, Opioids, or Amphetamines), the airman refused the test entirely, or the shy bladder process ended without a sufficient urine specimen. However, what happens when an airman or aviatrix, through no fault of his or her own, cannot produce a sufficient specimen? Fortunately, the DOT has a process whereby an individual with a “shy bladder” may be able to avoid the dreaded stigma of a “refusal,” assuming certain procedures are followed pursuant to 49 C.F.R. 40.193.

What is Shy Bladder?

The term “shy bladder” refers to a “situation when the employee does not provide a sufficient amount of urine (45 mL) for a DOT-required drug test.” “Urine Specimen Collection Guidelines,” revised July 3, 2014, page 20. Typically, if an individual informs the collector that he or she cannot provide a specimen, the collector must still begin the collection procedure regardless of any reasons given. Id. If, as the individual suspects, an insufficient amount of urine is provided to the collector on the initial attempt, or no urine at all, the collector must discard the insufficient specimen (assuming it is within the appropriate 90–100 degree Fahrenheit temperature range) and begin the “shy bladder” process. Id. at 20-21.

What is the Shy Bladder Procedure?

Generally, the Shy Bladder procedure consists of six (6) steps as found in 49 C.F.R. 40.139.

Step 1: The collector requests the employee to go into the rest room and try to provide a specimen.

Step 2: If an insufficient specimen is provided, the collector discards the insufficient specimen and notes in the “Remarks” line on the Federal Drug Test Custody and Control Form (CCF) when the individual provided the insufficient specimen. This is the time when the “shy bladder” collection process starts.

Step 3: The collector should then explain to the individual the process for a shy bladder collection and urge the individual to drink up to 40 ounces of fluids, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. Of note, is that the individual is not required to drink the 40 ounces of fluids.

Step 4: If the individual refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is completed, the collector must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER. This is generally considered a refusal to test.

Step 5: If the individual has not provided a sufficient specimen within three hours of the firsts unsuccessful attempt to provide the specimen, the collector must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER.

Step 6: The collector then sends Copy 2 of the CCF to the MRO and Copy 4 to the DER. This is done even if the individual did not provide any specimen in order to notify the MRO and the individuals employer of the problem. The collector must send or fax these copies to the MRO and DER within 24 hours or the next business day.

What is Your DER Supposed to Do When Notified of an Employee’s Shy Bladder After a Test?

Pursuant to 49 C.F.R. 40.193(5)(c), the DER, when the collector informs him or her that the individual has not provided a sufficient amount of urine, must consult with the MRO. After consulting with the MRO, the DER should direct the individual to obtain, within five (5) days, an evaluation from a licensed physician. The licensed physician must be acceptable to the MRO and must have expertise in the medical issues raised by the individual who failed to provide a sufficient specimen.

What is Your MRO Supposed to Do When Notified of an Employee’s Shy Bladder After a Test?

Likewise, 49 C.F.R. 40.193(5)(c)(1) speaks to the actions an individual’s MRO should take under the “shy bladder” procedures. As such, the MRO must provide the individual’s physician with certain information. This information should include that: the individual was required to take a DOT drug test, but was unable to provide a sufficient amount of urine to complete the test, the consequences of the appropriate DOT agency regulation for refusing to take the required drug test, and that the referral physician must agree to follow the requirements of 40.193.

The referral physician must recommend to the MRO that the individual has a medical condition which, within a high degree of probability, could have precluded the employee from providing a sufficient amount of urine or that there is not an adequate basis for determining that a medical condition has or, with a high degree of probability, could have precluded a sufficient amount of urine.

If the referral physician informs the MRO that the individual has a medical condition which could have precluded the employee from providing a sufficient amount of urine, the MRO must accept that recommendation and check “Test Cancelled” on the CCF. However, if the referral physician does not make that determination, the MRO must check the “Refusal to Test” box and “Other” box in Step 6 on Copy 2 of the CCF and note in the “remarks” line as needed.

When to Call the Ison Law Firm

If you have recently been selected for a random FAA DOT urine drug test but were unable to provide a sufficient specimen, you should immediately talk to the attorneys at The Ison Law Firm, especially before you speak with anyone at the FAA. Keep in mind, anything you say, can and will be held against you in this process. Carefully choosing your words and what information you provide to the FAA is of the utmost importance in this situation – your certificates and career are on the line! If you are facing FAA certificate action because of a DOT drug test refusal, call the Pilot Lawyers at The Ison Law Firm at 855-FAA-1215 to discuss your options today!