Arbitrator Reinstates Employee in Drug Testing Case
Employees who test positive for drugs frequently are permitted to keep their jobs so long as they do one or all of the following: 1) serve a suspension; 2) successfully complete substance abuse treatment; & 3) establish themselves to be drug free prior to returning to work. A return-to-duty drug test or subsequent test that is positive can justify termination. Attorneys Jillian Ryan and Alfred Gordon persuaded an arbitrator that a positive return-to-duty drug test could not justify termination, given the possibility that it could have reflected residual use from the time the worker initially tested positive.
Most policies or collective bargaining agreement articles on substance abuse prohibit use that is on-duty or interferes with job performance. At the same time, many policies recognize that substance abuse is an involuntary affliction that is more effectively addressed through rehabilitative and humanitarian measures. A one-strike or zero-tolerance approach can be ineffective because it fails to recognize the persistence and pervasiveness of addiction, discourages people from seeking treatment (for fear it will lead to termination), and is unlikely to reduce incidence of drug abuse.
By contrast, a policy that provides for a second chance expressly encourages workers to seek treatment, provides the opportunity for employees to confront and correct behavior that may have been undiagnosed or unrecognized, and is more likely to reduce substance abuse at work.
For employees subject to a policy that provides for a second chance, it is critical that any subsequent test examine the period after the employee has successfully completed any treatment program. This notion applies whether the test is a return-to-duty is conducted prior to working again or a random test administered after the employee is working again.
In the arbitration at issue, the employee tested positive at work. The Union, employer and employee agreed that the employee would serve a suspension, seek treatment, and produce a negative test result prior to coming back to work. The employee completed rehabilitation and asked to be tested. The test was positive, despite the employee not using drugs for about a month. But the Arbitrator agreed with the Union that the employer could not persuasively exclude the possibility that the result reflected use around the time of the original test or prior to rehabilitation.
