WHEN HAIR TRUMPS URINE
An agency suspended a firefighter for 30 days who tested positive for illegal drugs after being selected in a random test. Because the employee was absolutely convinced that he had not used drugs, he tried to prove that the urine sample produced a false positive and/or that his sample had become mixed up with another employee’s. Consequently, along with his written reply he provided the result of a private test he had done of his hair that showed he had not used drugs at any recent time. He also asked the agency for a portion of the urine it tested so that he could have a private DNA test run on it. The agency refused to release any of the urine citing HHS rules that prohibit DNA testing on urine samples collected for drug testing. So, that left it up to the judge and MSPB itself to decide what to do.
The judge decided that based on some evidence suggesting that there may have been an error in the urine’s chain of custody on its way to the lab, and the agency’s refusal to release the urine for DNA testing to prove whether it was the employees, the validity of the hair follicle test, and the employee’s consistent assertion throughout the process that he had not used drugs that the agency had failed to meet its burden that the agency had failed to meet its burden of proving by the preponderance of evidence that the employee had used illegal drugs.
This case opens the door for employees using private hair follicle tests to rebut urine testing results, but anyone wishing to use that defense tactic should read this case carefully to avoid some of the mistakes the employee did that undermined the weight of his hair follicle test. See Forte v. Dept. of Army, 2016 MSPB 1 (January 6, 2016) This case should also alert agencies that they need to figure out how to handle employee demands for portions of the urine samples and how to balance hair follicle test results with them. After all, the Executive Order that authorizes the testing of Federal employees for illegal drug use provides that “[p]ositive drug test results may be rebutted by other evidence that an employee has not used illegal drugs.” (citing Exec. Order No. 12,564, 51 Fed. Reg. 32889, 32891 (Sept. 15, 1986)). Hair follicle testing is the only practical rebuttal evidence for a positive urine test.