Department of Sanitation v. Anonymous
The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent. It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.
Federal law mandates that the Department conduct random substance abuse testing for all employees. The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”
Respondent was randomly selected for drug testing, and failed to provide a sufficient sample. However, the drug testing procedure was not followed accurately. Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours. It was also not “distributed reasonably” over the three hours.
The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.