A Texas oil refinery whose substance abuse policy said an employee “whose drug test is positive, regardless of the reasons for the test,” would be considered in violation of company policy and “will be terminated from employment” meant what it said, a labor arbitrator has concluded. The policy, along with an agreement requiring that an employee seeking assistance for a claimed drug problem abstain from drug use, justified the discharge of an employee who tested positive for marijuana on a return-to-duty drug test, even though the cutoff levels for positive results were low. Valero Services, Inc. and United Steelworkers Int’l LLC, 134 LA (Bloomberg/BNA) 1704 (FMCS Case No. 14/500024, May 4, 2015) (Scheiber, B., Arb.).

The grievant was a process operator at a catalytic generator unit, a pressurized process in the middle of a refinery. Because he experienced severe sleep issues, some depression and eating disorders, he received short term disability benefits. While he was on disability leave, he tried marijuana – just one time, he claimed – hoping it would alleviate his problems. After discussing his marijuana use with the company, he decided to self-identify under the substance abuse policy and asked to be placed in the company’s EAP.

He was allowed to enter the EAP and took a drug test to obtain a baseline reading. He tested positive for marijuana at 27 nanograms/milliliter (ng/ml) of marijuana metabolites. This exceeded the company’s initial drug test cutoff concentration of 20 ng/ml and its confirmatory test cutoff concentration of 10 ng/ml. (By comparison, DOT cutoff concentrations for marijuana or its metabolite for initial and confirmation tests are 50 ng/ml and 15 ng/ml, respectively. However, DOT regulations were not involved here.)

The grievant was required to sign an “Agreement for Continued Employment.” He promised to “totally abstain from the illegal use of drugs” and acknowledged that any further requests for assistance were dependent on keeping his promise. If he used drugs illegally or used alcohol he would be “terminated from employment [with just cause] even if . . . [he] self-identified as needing treatment.”

When the grievant explained his circumstances to the EAP case manager, she said it did not appear he had a problem and there was no reason for him to see her. She told him to take a drug test with his personal physician and to advise her when he was ready to take a confirmation test conducted by the company. She warned him that if the confirmation test result was positive, he would be terminated.

The grievant thereafter took a drug test ordered by his personal physician. The laboratory reported he tested negative for marijuana metabolites at a cutoff concentration of 100 ng/ml. He notified the EAP manager, saying he had received a negative result on his doctor’s test. She told him to arrange for a company drug test collection through Human Resources, which he did. The grievant’s test result this time was positive for marijuana metabolites at 11 ng/ml, one nanogram above the company’s cutoff. A medical review officer verified the result, and the grievant was terminated. His union sought arbitration.

The arbitrator denied the grievance. He concluded, first, that the reasonableness of “the company’s stringent drug policy is evident from the hazardous nature of the company’s business.” A failure of an employee to pay full attention could have “catastrophic” consequences, the arbitrator said. He noted that the substance abuse policy’s cutoffs were consistent with the industry standard. Second, despite the grievant’s promise to abstain from using drugs illegally and his assertions at hearing that he had not used marijuana after taking a baseline drug test a month earlier for the EAP, expert testimony persuaded the arbitrator that the grievant could not have received a 11 ng/ml result on his return-to-duty confirmation test unless he had used marijuana recently. He would have been at zero level had he actually refrained, according to the company’s expert (a faculty member in toxicology and pharmacology at a state university medical school and published author). Moreover, the employee had been warned of the consequence of a positive test result.

That the grievant said he was unaware of the company’s low cutoff threshold for a confirmation test and relied on the result obtained from his physician’s drug test did not excuse his use of marijuana in violation of his agreement, the arbitrator reasoned. Also unavailing was the fact that the EAP caseworker concluded there was no need for grievant to enter into a course of treatment. Based on a single use of marijuana in a six-month period, the arbitrator said, it was reasonable for the case manager to reach that conclusion. The employee’s long record of employment and “‘unblemished service’” record also failed to mitigate the punishment.

“In this case,” the arbitrator wrote, “the Substance Abuse Policy and the Agreement for Continued Employment leave no room for arbitral discretion. They explicitly provide for termination of an employee whose drug test is positive.” Coupled with the company’s consistent enforcement of its Agreement for many years, the arbitrator could find no basis for overturning the discharge.