We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National Labor Relations Act. See “Labor Board Sets New Standard for Determining Joint Employer Status” (August 25, 2015).  While the NLRB in Browning-Ferris said it would continue to examine whether the putative joint employers ‘“share or codetermine those matters governing the essential terms and conditions of employment’” of the employees in question, it also announced it no longer will require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. “Reserved authority” to exercise control, it said, was relevant. Furthermore, the Board said it would no longer require that an employer’s control over employees be exercised “directly and immediately.” “If otherwise sufficient, control exercised indirectly – such as though an intermediary – may establish joint employer status,” it concluded. Thus, a host employer could be found a joint employer of its contractor’s employees because of its exercise of “indirect control.”

Among the circumstances the NLRB in Browning-Ferris said contributed to a joint employer finding were those pertaining to drug and alcohol testing. The contracting firm (Leadpoint) was required by its agreement with Browning-Ferris (BFI), the host employer, to ensure that all employees referred to BFI passed a five-panel urinalysis drug screen or similar test as agreed to in writing with BFI. Leadpoint was not allowed to refer workers who did not pass the test. Furthermore, BFI could request written certification of such test completion. Even after an employee was referred to BFI, Leadpoint was responsible for ensuring the employee remained free from the effects of alcohol and drug use and in condition to perform his job duties for BFI. The drug tests were administered through the Leadpoint HR department.

The Board also relied on events taking place after employees went to work at the BFI facility. It found that discipline of two Leadpoint employees was “prompted by BFI action.” BFI’s operations manager emailed Leadpoint’s CEO that two Leadpoint employees were observed passing a pint of whiskey at the jobsite. As a result, the two employees were removed and sent immediately for drug and alcohol screening. The Leadpoint CEO stated that BFI’s email “request[ed] [the employees’] immediate dismissal.” Following investigation, Leadpoint terminated one employee and reassigned the other. BFI’s agreement with Leadpoint gave BFI the right to remove any employee from its premises.

The Board found the pre-employment drug testing showed “BFI possesses significant control over who Leadpoint can hire to work at its facility,” and that although BFI did not participate in Leadpoint’s day-to-day hiring process, “it co-determines the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions.” Similarly, the removal of the two employees suspected of alcohol violations at work showed “BFI possesses the same unqualified right ‘to discontinue the use of any personnel’ that Leadpoint has assigned.” Indeed, in the Board’s view, BFI’s rights under the agreement signified “the outcome was preordained….”

These facts contributed to a joint employer finding by the NLRB. Requirements by host employers that their contractors’ employees successfully pass pre-employment or pre-assigned drug tests are not uncommon. Neither are agreements under which host employers reserve the right to determine who can remain on their premises, including instances where substance abuse policy violations are detected. After Browning-Ferris, employers may want to reconsider whether they prize their ability to control contractors’ employees on their premises more than their freedom from labor law liability.

Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).

Plaintiff worked as an Extruder Operator, which required him to operate a machine that melts plastic pellets into a flat sheet which is then stretched in an oven. This job was considered dangerous, and required Plaintiff to wear safety glasses, steel-toed shoes, gloves and earplugs while working.

From 2009 to 2012, Plaintiff took several medical leaves of absence to receive treatment for pancreatitis. In April 2013, he requested time off to recover from a facial fracture and deviated septum that occurred during a bar fight. A week after he returned to work, he requested additional time off due to problems with his “stomach or pancreas.” The medical certification returned by his physician indicated that his primary diagnosis was “acute alcoholic pancreatitis.” This was the first time that the employer learned that Plaintiff’s pancreatitis was connected to alcohol consumption. Based on this diagnosis and the fact that Plaintiff recently had been injured in a bar fight, the employer determined to subject Plaintiff to “reasonable suspicion” drug and alcohol tests upon his return to work.

Plaintiff returned to work on June 15, 2013 at 5:30 a.m. Shortly after the pre-shift meeting, he was advised that he was being taken to the hospital for drug and alcohol testing. The first breath alcohol test, administered at 7:36 a.m., showed a blood alcohol level of .081. The second breath alcohol test, administered at 7:53 a.m., showed a blood alcohol level of .078. Plaintiff’s employment was terminated on June 17, 2013.

Plaintiff commenced a lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act and Family and Medical Leave Act retaliation. Among other things, Plaintiff argued that the disclosure of his confidential medical diagnosis for the purpose of drug and alcohol testing and termination was a violation of the ADA. The Court disagreed, finding that the employer was concerned for the safety of Plaintiff and his co-workers, especially in light of the dangerousness of Plaintiff’s job. The Court also rejected Plaintiff’s argument that the alcohol test was an impermissible medical examination under the ADA, because the purpose of the test was not to determine whether he was disabled, but rather, to determine whether he arrived at work impaired by alcohol.

Additionally, the Court rejected Plaintiff’s claim that he was “regarded as” disabled. The fact that the employer was aware of his diagnosis was not enough to establish that the employer regarded Plaintiff to be disabled. Moreover, the employer’s concerns were not with Plaintiff’s medical condition, but with the possibility that he might report for work while under the influence of alcohol.

Plaintiff also challenged the basis of the “reasonable suspicion” for the alcohol test. He argued that no one personally observed him acting in a way that would indicate he was impaired, but rather assumed that he might be impaired. The Court rejected this argument, too, because the employer’s Employee Handbook contained a catch-all provision that permitted it to “evaluate situations on a case-by-case basis where deviations are in the best interest of [Taghleef] and its employees.” Given the evidence that Taghleef was concerned with safety, and because the reason for the test was to ensure that Plaintiff was not working while impaired, the Court held that the alcohol test was not discriminatory.

Plaintiff’s FMLA retaliation claim was dismissed for similar reasons, specifically: there was no causal connection between his FMLA leave and the alcohol test, and, Taghleef introduced evidence that other employees who had not taken FMLA leave were disciplined for drug and alcohol violations.

Pre-offer drug tests to determine the use of illegal drugs did not violate the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on September 15, 2015. EEOC v. Grane Healthcare Co. et ano, CV No. 3:10-250 (W.D. Pa. Sept. 15, 2015).

The Court previously held, for purposes of deciding summary judgment motions, that the pre-offer drug tests did, in fact, qualify as impermissible medical examinations that violated the ADA because each urine sample was tested for both medical reasons and for use of illicit drugs.  EEOC v. Grane Healthcare Co. et ano., CV No. 3:10-250 (W.D. Pa. Mar. 6, 2014). (We blogged about that earlier decision here).   After a bench trial, however, the Court awarded judgment to Defendants, holding that the evidence showed that the drugs tests “were proper drug screens” and did not constitute medical examinations under the ADA.

The Court stated that in order for a drug test to be considered a medical examination under the ADA, a claimant must show that (1) the drug test in question was not administered to determine the illegal use of drugs, and (2) that the drug test did not, in fact, return a positive result for the illegal use of drugs. In this case, Defendants presented credible testimony at trial to satisfy the Court that its only intent in performing pre-offer drug testing was to determine whether the applicants were using illicit drugs. A defense witness testified at trial that when an applicant tested positive for a controlled substance, she would cross-check the positive result for controlled substances with the list of medications used by the applicant (provided by the applicant prior to the test). It was only at this point that the Defendants learned whether an applicant was taking a lawfully prescribed medication. The drug test itself did not show whether an applicant used a prescription medication. The Court observed that the review of an applicant’s medication list was intended only to make employment decisions based on illegal drug use, rather than merely a positive test result. The Court held that this procedure is acceptable under the ADA and that under this protocol, the pre-offer drug test was not a medical examination that violated the ADA.

The EEOC offered no evidence to contradict Defendants’ proffered reason for conducting the pre-offer drug tests, namely, to make employment decisions based on illegal drug use. Additionally, as to four applicants who tested positive and were not hired, the EEOC failed to establish that the drug tests were incorrect, or that the applicants had valid prescriptions for lawful medications.

It is possible that the Court could have ruled differently if the applicants had presented valid prescriptions for lawful medications that revealed medical conditions.

With the race for the White House heating up, the “politics of marijuana” is looming as a possibly significant factor.

Twenty-four state ballot initiatives on marijuana legalization in 16 states have been filed already and will be voted on in November 2016, including in the “swing states” of Arizona, Colorado, Florida, Michigan, Missouri, Nevada, and New Mexico.

This is important because marijuana-legalization ballot initiatives are widely acknowledged to “turn out the vote” of single-issue, first-time, and younger voters – all of whom disproportionately vote Democratic. In close races and swing states, they may make the difference. Insiders have reported that these voters have determined the outcome in several contested races and states in the last two election cycles (e.g., in Barack Obama’s defeat of Mitt Romney in Colorado in 2012).

Moreover, the marijuana-legalization issue is increasingly a focus in U.S. Senate and House races and in pro- and anti-marijuana bills. Recently, the House Republican leadership successfully stripped out pro-marijuana-legalization amendments to two pending bills.

Away from Capitol Hill, twenty-four states and Washington, D.C., already allow for “medical”-marijuana use – at least under some circumstances. Four states (Alaska, Colorado, Oregon, and Washington) and the District of Columbia allow adults to smoke marijuana “recreationally.”

However, proponents’ efforts to introduce marijuana into the legal and cultural mainstream have met with opposition in the workplace and the courts. Even as many states allow “medical” or “recreational” use of marijuana to some extent, the courts have upheld employers’ interests in maintaining drug-free workplaces against challenges by job applicants or employees who were not hired or have been terminated because of marijuana-related substance-abuse-prevention policy violations. Employers have prevailed in every court case brought by employees claiming a “medical”-marijuana justification for their positive drug tests after the company’s adverse employment action – including many decisions in California, Colorado, Michigan, Montana, Oregon, and Washington.

This litigation results from a clash between a culture that increasingly accepts marijuana and companies that prohibit illicit drug abuse because of legitimate safety and productivity concerns. The conflict ultimately will be resolved by Congress or the courts (four lawsuits currently are pending to invalidate Colorado’s legalization of marijuana). Meanwhile, the current Administration, through the U.S. Justice Department, has acquiesced in states legalizing marijuana, essentially by refusing to enforce the federal Controlled Substances Act in those states – an unprecedented policy. This policy could change on January 20, 2017, when a new president is inaugurated.

Thus far, most presidential contenders have shied away from the issue. However, former Texas Governor Rick Perry (R) has endorsed decriminalization. Kentucky Senator Rand Paul, a Libertarian, has consistently supported states’ rights to establish their own marijuana policies and supports decriminalizing marijuana possession. Former Secretary of State Hillary Clinton (D) has hinted that she is comfortable letting the states continue to experiment.

Conversely, New Jersey Governor Chris Christie (R) and Texas Senator Ted Cruz (R) have strongly opposed marijuana legalization, and Florida Senator Marco Rubio (R) also is on record as opposing marijuana legalization.

What the Congress does between now and mid-2016 may be critical. Supporters of marijuana legalization are gearing up. The marijuana industry has hired well-positioned lobbying firms. One of their top issues is to fix the rules that bar marijuana businesses from using banks. The well-funded National Cannabis Industry Association (NCIA) is supporting legislation that would change federal law to recognize the rights of local jurisdictions, including Washington, D.C., to create and regulate their own marijuana laws.

Finally, the U.S. Senate Appropriations Committee voted in support of opening banking services to state legal marijuana business. Senate Bill 683, the CARERS Act of 2015, introduced by New Jersey Senator Cory Booker (D), seeks to amend the federal Controlled Substances Act (21 U.S.C. § 801 et seq.) to ensure that CSA would not apply to anyone acting in compliance with state law relating to the production, possession, and distribution of medical marijuana. The proposal transfers marijuana from Schedule I to Schedule II of the CSA and prohibits federal banking officials from discouraging depository institutions from providing financial services to a marijuana-related, state-permitted legal business. A similar amendment was passed by the full House of Representatives in 2014. The House has not yet taken up the issue in 2015. House Republicans, however, supported a budget plan that would prevent legal sales of marijuana in the District until at least 2017.

Estimates indicate that the value of the legalized marijuana industry currently approaches $3 billion nationwide and is growing. Obviously, a lot is at stake.

The resolution of the marijuana-legalization issue, at both the federal and state levels, could play a significant role in determining the outcome of the upcoming presidential election.

Brewing more trouble for workplace drug testing, the National Labor Relations Board has held a New York beer distributor violated the National Labor Relations Act by denying its driver helper, who reported to work with his clothes “reek[ing] of the smell of marijuana” and with “glassy” and “bloodshot” eyes, and was directed to take a drug test immediately despite requesting representation by his union steward, his right to union representation at an “investigatory interview” (the drug test) about his possible substance abuse. The Board also found the employer had unlawfully discharged the employee for refusing to take the test in the absence of his union steward. Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015).

The employee spoke to his shop steward on the telephone at the time he was told to go for a drug test and the steward replied that he would not accompany the driver helper to the test because it was his day off. However, the Board held the employee was entitled to the “physical presence” of a union representative. Deciding the employee’s statutory rights here were infringed, the Board relied heavily on the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), according unionized employees the right to union representation, upon request, during investigative interviews where the employee reasonably apprehends the interview could lead to discipline, and its decision in Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, that a workplace drug test was an investigatory interview into possible misconduct to which Weingarten applied.  In Ralph’s Grocery, the Board held that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.”

The Board panel majority relied on the comment by one manager to the driver helper that the employee “smelled funny,” and his question whether the driver helper had been “doing anything stupid,” as well as the remark made by another manager, in sending the employee for a test, that they could finish their conversation at the test site, to bolster its contention that an investigatory interview was in progress when the employee made his request for representation. Thus, it reasoned, the driver helper was entitled to Weingarten representation.

The panel majority decided the physical presence of the steward was needed to provide the driver helper with “active assistance” – “at the very least,” it said, “to permit the [union] representative to independently observe [the employee’s] condition and potentially contest the grounds for [the managers’] suspicions.” According to the majority, the steward also could have “advised [the driver helper] regarding the standard testing protocol and ensured that those protocols were followed.” (At least one of the managers had received “reasonable suspicion” training; the decision is silent as to whether the union steward also had received such training. Furthermore, the driver helper had served previously as union steward while working as a forklift operator for the company.)

The Board allowed it was not requiring the employer to postpone drug testing indefinitely, but did insist that the employer allow the employee an unspecified “reasonable period of time to obtain union representation.” Here, it said, the employer did not accord the employee sufficient time to see whether an assistant shop steward who was at work that day “might become available.”

Member Johnson dissented. He protested, “My colleagues today have painted companies seeking to maintain safe workplaces into a corner by unnecessarily foreclosing their ability to take reasonable steps to confirm whether an employee has reported to work under the influence of drugs or alcohol.” In his view, a drug or alcohol test should not have to be delayed because of the absence of a union representative; “employers,” he said, “have a legitimate and substantial interest in immediately testing employees suspected of using drugs or alcohol, particularly employees who hold safety-sensitive positions.” Member Johnson noted, too, that the Board’s decision may give rise to disputes under workplace substance abuse policies, where testing is thwarted by a union’s delay in providing representation and an employer seeks to rely on reasonable suspicion alone as a basis for taking action against an employee. Whether the employer could win an arbitration on this ground was not free from doubt, Member Johnson observed. Furthermore, he worried that union representatives could be incentivized to make themselves unavailable for “investigatory interviews” to frustrate employer drug and alcohol testing policies and so make termination of an abusing employee more difficult.

Employers of represented employees who maintain drug and alcohol testing programs may have to review their policies and procedures in light of this decision and Ralph’s Grocery to promote their effectiveness, while avoiding “Weingarten rights” pitfalls.

It has long been recognized that federal regulations mandating drug testing for certain employees in safety-sensitive industries preempt contrary provisions in Minnesota’s state drug testing law known as “DATWA” (Drug and Alcohol Testing in the Workplace Act). But some Minnesota practitioners have argued for years that employee protections in DATWA should not be preempted if they are not explicitly in conflict with federal law. A recent order from the District of Minnesota has likely put an end to this line of reasoning. MN Airlines, Inc., d/b/a Sun Country Airlines v. Levander, No 15-CV-2454 (PAM/BRT) (D. Minn. Aug. 28, 2015).

The employee was a flight attendant who was required to be drug tested under The Omnibus Transportation Employee Testing Act of 1991 (“OTETA”) and regulations promulgated by the Federal Aviation Administration (“FAA”). The OTETA is a federal law that requires drug and alcohol testing of safety-sensitive transportation employees in the aviation, trucking, railroad, mass transit, pipeline and maritime industries. After testing positive on a random drug test, the employee was terminated. Her attorney, however, contacted her employer, Sun Country Airlines, and threatened a lawsuit under DATWA, which, among other things, prohibits an employer from terminating an employee for a first-time positive without first allowing the employee an opportunity to participate in and complete a drug counseling or rehabilitation program.

Sun Country took the initiative and filed suit first, in federal court, seeking a declaratory judgment that DATWA was completely preempted in this circumstance. Levander’s attorney argued that federal law does not require an employer to terminate an employee in a safety-sensitive position for a positive drug test, and therefore state and federal law could be applied in harmony. The Court disagreed.

The Court discussed the difference between the more narrow type of “conflict preemption” and the broader implications of “field preemption.” Here, it concluded, the FAA has “preempted the field of drug testing of airline personnel” and DATWA was therefore preempted in all aspects. Specifically:

The regulations promulgated under OTETA “preempt[] any State or local law, rule, regulation, order, or standard covering the subject matter” of those regulations, “including, but not limited to, drug testing of aviation personnel performing safety-sensitive functions.” . . . Rarely is the intent of a law so clear: states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. The []DATWA purports to do just that, by precluding airlines from terminating the employment of such personnel for an initial positive drug test. As such, it is preempted.

Although the holding appears limited to preemption by FAA regulations, it seems likely that courts would apply the same reasoning to preemption by other U.S. Department of Transportation regulations promulgated pursuant to OTETA such as those for drivers of commercial motor vehicles, among others. This decision resolves years of speculation that both federal and Minnesota state law might apply in some of these situations.  It is unknown whether the decision will be appealed.

The Minnesota Court of Appeals handed employers a rare win under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), upholding dismissal of a wrongful discharge case after an employee who tested positive for drugs did not comply with the recommended treatment because he wanted to choose a different treatment program. Jones v. Green Bay Packaging, Inc., No. A15-0017 (Minn. Ct. App. Aug. 10, 2015).

By way of background, DATWA, which is codified in Minnesota Statutes Sections 181.950-957, provides specific limitations on how and when employers in Minnesota may test employers and applicants for drugs or alcohol. Among other things, DATWA restricts employers from discharging employees as the result of a first positive drug or alcohol test unless two conditions are satisfied:

(1) the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and

(2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

Minn. Stat. § 181.953, subd. 10(b) (2014). (emphasis added)

The plaintiff in this case, Jones, tested positive for marijuana after a workplace accident. Green Bay Packaging presented Jones with a Conditional Reinstatement Agreement (“CRA”), which provided that Jones could retain his employment if he (1) immediately submitted to evaluation by a chemical dependency treatment center approved by Green Bay Packaging, and (2) successfully participated in treatment at that treatment center for the amount of time recommended by the center. The CRA listed treatment centers that Green Bay Packaging had already approved and stated that “additional facilities could be approved by the company.”

Jones then asked that he be allowed to participate in evaluation and treatment at two facilities which were not listed in the CRA, one of which was Riverplace Counseling Centers. Green Bay Packaging approved both additional treatment centers. Jones visited Riverplace for a chemical dependency assessment. After the assessment, Riverplace recommended that Jones receive outpatient chemical dependency treatment at its facility four times per week.

Jones signed the CRA on May 22, but informed Green Bay Packaging on May 24 that he wished to receive his treatment at another facility, Grace Counseling Services. He claimed that he could not afford the gas required to attend the program at Riverplace because it was a 30-minute commute from his home. He requested that Green Bay Packaging approve treatment at Grace because the facility was near his home and its program met only twice per week. Green Bay Packaging denied the request and told Jones that he would be fired if he did not participate in the recommended treatment program at Riverplace. Jones did not participate in the treatment program at Riverplace. Green Bay Packaging then terminated Jones’ employment.

Jones sued Green Bay Packaging as a pro se plaintiff for wrongful discharge under DATWA. The district court dismissed the case on summary judgment and Jones appealed. The issue for the courts was a fairly straightforward matter of statutory interpretation, specifically the phrase “as determined by the employer.” Affirming dismissal, the appellate court held that “[t]he plain language of this phrase provides that the employer must give the employee the opportunity to attend either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, indicating only that the employer is tasked with deciding whether counseling or rehabilitation is more appropriate for the employee.” The result is that employees do not have the unfettered right to choose a treatment center or treatment program.

While the result of the Court’s decision was not surprising, the decision highlights how critical employer engagement is when complying with this statute, including after an employee tests positive. Even if an employer has a compliant policy and conducts testing in a compliant manner, it must still interact with the employee who tests positive to work out and agree on a treatment program, and then continue to monitor the status and ultimate completion of the program. Allowing the employee free reign to choose his or her own program can be problematic, as a federal court in Minnesota has suggested there is no limit on the length of treatment under the statute, other than what is agreed to up front. This level of engagement may require time and commitment by Human Resources personnel but should not be overlooked.

Finally, the decision also highlights the usefulness of a written return to work agreement or, in this case, a “CRA.” The DATWA statute does not require or even mention a CRA or return to work agreement, but employers in Minnesota typically rely on them to confirm that all parties understand their rights and obligations in this situation, and the Court’s implicit endorsement in Green Bay Packaging makes this a best practice for all Minnesota employers.

The Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) have published a new report discussing trends in the growing heroin epidemic in the United States. The July 7, 2015 report examined data from the 2002 – 2013 National Survey on Drug Use and Health, which revealed significant increases in heroin use and addiction, as well as a 286% increase in heroin-related overdose deaths during that period. The greatest increases in heroin use have occurred in groups with historically low rates of heroin use, including women and individuals with private insurance and higher incomes. In the past decade, the gaps between men and women, between individuals with low and higher incomes and between individuals with Medicaid and private insurance have narrowed with respect to use of the drug.

The report also identified risk factors and trends related to the illegal and highly addictive opioid drug. The strongest risk factor for heroin abuse or dependence is abuse or dependence on prescription opioid painkillers. In fact, individuals addicted to prescription opioid painkillers are forty times more likely to become addicted to heroin. In addition, the report found that people who are addicted to alcohol are two times more likely to become addicted to heroin, people who are addicted to marijuana are three times more likely to become addicted to heroin and people who are addicted to cocaine are fifteen times more likely to become addicted to heroin.

“Heroin use is increasing at an alarming rate in many parts of society, driven by both the prescription opioid epidemic and cheaper, more available heroin,” said CDC Director Tom Frieden, M.D., M.P.H. “To reverse this trend we need an all-of-society response – to improve opioid prescribing practices to prevent addiction, expand access to effective treatment for those who are addicted, increase use of naloxone to reverse overdoses, and work with law enforcement partners like DEA to reduce the supply of heroin.”

Employers should consider educating their workforces about the risks involved in the use of prescription opioid medications, as we discussed in this recent blog post, as well as the alarming rise in heroin abuse.  Employers also should consider whether a drug testing program is right for their workplace if they have not already done so.

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.

A labor arbitrator has upheld the grievance of a school bus driver who was terminated from her job with a bus company after she brought alcohol-laced cupcakes to work, and offered them to other employees. He found that she was not fired for “just cause” under the collective bargaining agreement because the bus company’s policy barring the presence and use of “intoxicating beverages,” on which the employer relied, was inapplicable to the grievant’s alcohol-infused cupcakes. First Student, Inc. and Teamsters Local Union 957, 134 LA (Bloomberg/BNA) 1699 (May 26, 2015) (Fullmer, J., Arb.).

Unit employees arranged on-site “potluck” social gatherings or “parties” from time to time, towards the end of the work day. Employees signed up to bring various food and drink. On two occasions in 2013, the grievant brought her “adult” cupcakes to work for these events. On Halloween 2014, she did so again. Her two dozen offerings included “Irish Car Bomb” and “Strawberry Margarita” cupcakes, which contained alcohol.

At about 4:30 p.m., after she had finished working, the grievant got the cupcakes out of her car and made her way to the bus barn. On the way, she offered a cupcake to some of the drivers on the parking lot; it is unclear how many accepted, whether they had runs left, or whether they ate the cupcakes. After she entered the barn, she offered the dispatcher one, too, who accepted the cupcake. The grievant proceeded down the hallway, announcing the availability of the cupcakes, explaining that they contained alcohol, and cautioning employees not to drive a bus after eating them.

The grievant then encountered the employer’s Location Manager, who told her to stop distributing the cupcakes. He retrieved the cupcake from the dispatcher and took it to his office for possible use as evidence. The grievant was later terminated for what the company called “gross misconduct.” It maintained she violated a Company rule prohibiting “possession, use or sale of any intoxicating beverage . . . on Company property or while in possession of a Company vehicle . . .,” and making such violation punishable by “immediate termination,” in the employer’s discretion. Her union grieved her dismissal and brought the issue to arbitration.

The arbitrator upheld the grievance. The rule in question, he reasoned, addressed an “intoxicating beverage,” and according to a dictionary definition, that meant a “drinkable liquid.” No drinkable liquid was involved here, but only cupcakes, which are eaten. Accordingly, he found, the Company’s rule was not broken by the grievant.

Recognizing, however, that “the simplicity of the preceding is beguiling and does not make for an erudite arbitration opinion,” the arbitrator continued. First, he rejected an employer argument that it had consistently enforced its anti-alcohol rule by terminating violators. Those cases, he observed, all concerned drinkable beverages – the “most lurid” involving a bus driver who took a “selfie” in the cab of her bus with a capped bottle of malt liquor pressed to her lips, which appeared in the Cincinnati media.

Second, the arbitrator found the employer had never notified employees of its interpretation of the rule to apply to foodstuffs. (The grievant asserted she had brought such cupcakes to the worksite previously with the employer’s knowledge and acquiescence.) Third, there was no evidence the cupcakes were of an “outlandish” kind that essentially was a beverage. Fourth, there was no evidence that “might be at least emotionally persuasive” that the cupcakes were in fact intoxicating. Although the Company had “sequestered” a cupcake, the arbitrator said, it apparently never tested it for alcohol. Neither was there evidence that any employee actually ate a cupcake that day. Finally, the arbitrator found there was disparate enforcement of the rule. Although it discharged the grievant, it did not identify or discipline other employees who accepted the cupcakes from the grievant and therefore “possessed” an intoxicating beverage in violation of the rule.

Although the arbitrator found that “[t]his rule is assuredly valid in the school transportation industry and indeed could almost be deemed as required by public policy,” its application here, in his view, could not be relied upon to sustain the discharge.