(a) Termination for refusal. An employee who refuses to test will be terminated from the department.
(b) Characterization of refusal. An employee will be considered to have refused to test under any of the following circumstances.
  (1) The employee explicitly declines to take a required test, whether a first test or a subsequent test.
  (2) The employee fails to appear for an alcohol or drug test, except a pre-employment test, within a reasonable time, as determined by the department, after being directed to do so.
  (3) The employee fails to remain at the testing site until the testing process is complete. In the case of a pre-employment test, a final applicant who leaves the testing site before the testing process begins has not refused to test.
  (4) The employee does not attempt to provide a breath specimen for a required alcohol test or to provide a urine specimen for a required drug test.
  (5) The employee does not permit the observation or monitoring of the employee's provision of a specimen in the case of directly observed or monitored collection.
  (6) The employee fails to provide a sufficient breath specimen or a sufficient amount of urine when directed and there is no adequate medical explanation for the failure, as determined through a required medical evaluation.
  (7) The employee fails to undergo a medical examination or evaluation that was directed by an appropriate official. In the case of a pre-employment test, the final applicant has refused to test on this basis only if the test is conducted after the final applicant has been given a conditional offer of employment.
  (8) The employee fails to sign the certification at Step 2 of the Alcohol Testing Form.
  (9) The employee fails to cooperate in any part of the testing process, including refusing to empty pockets when so directed by the collector, behaving in a confrontational way that disrupts the collection process, fails to wash hands after being directed to do so by the collector, or any other uncooperative behavior.
  (10) The specimen contains levels of a substance that is lower than expected for human urine, a specimen that contains levels of a substance that are inconsistent with human urine, or a specimen has a creatinine and specific gravity value lower than expected for human urine.
  (11) An employee does not remain available for any mandatory alcohol or drug test.
  (12) For an observed collection, the employee fails to follow the observer's instructions to raise clothing above the waist, lower clothing and underpants, or to turn around to permit the observer to determine if the employee has any type of prosthetic or other device that could be used to interfere with the collection process.
  (13) The employee possesses or wears a prosthetic or other device that could be used to interfere with the collection process.
  (14) The employee admits to the collector or medical review officer that the employee adulterated or substituted the specimen.

Source Note: The provisions of this §4.39 adopted to be effective November 21, 2002, 27 TexReg 10754; amended to be effective January 1, 2009, 33 TexReg 10053; amended to be effective March 18, 2015, 40 TexReg 1523; amended to be effective April 18, 2017, 42 TexReg 2008