Labor & Employment Law

Refusal to submit to a drug test after arrest for alleged drug possession

By Harvey Randall, Esq.

Refusal to submit to a drug test after arrest for alleged drug possession
Fire Department v Brown, OATH Index No. 659/07

Administrative Law Judge John Spooner recommended termination for a firefighter found to have refused to submit to a lawful drug test ordered based on reasonable suspicion -- his arrest for drug possession. The Fire Department filed disciplinary charges pursuant to Administrative Code section 15-113 against Robert Brown, a firefighter. The Department alleged that Brown refused an order to take a drug test after being arrested for possession of cocaine and was in possession of both illegal drugs and an illegal weapon.

At the hearing Brown admitted that he refused to take a drug test after his arrest, but challenged the legality of the stop and frisk which preceded the arrest.

Judge Spooner said that the use of illegal drugs is serious misconduct, for which most firefighters have been terminated. An employee who refuses to submit to a lawful drug test order is deserving of the same penalty as employees who tested positive, since his refusal thwarted the ability of the employer to enforce the drug policy. Here, said the ALJ, Brown provided no plausible reason for his persistent refusal to submit to the test after being warned that a refusal could result in termination of his employment supports an inference that he had recently ingested illegal drugs and feared that a drug test would be positive.

Although Judge Spooner reviewed Brown?s employment record, he found ?little basis for mitigation? the penalty recommended as Brown worked for the Department for only three years. Although Brown had no prior disciplinary record, the ALJ said that Brown?s relatively brief tenure makes his clean record of marginal weight.

Full post as published by New York Public Personnel Law on April 08, 2008 (boomark / email).