Employer challenges ruling which says positive cocaine test insufficient to terminate – Say what?

Imagine you have an employee who failed a drug test and tested positive for cocaine. Imagine this employee drove a truck for your company. You would fire said employee, right? Well, put on the brakes!

A driver represented by The International Brotherhood of Teamsters Local 59A was recently terminated by the Colonial Wholesale Beverage Company after he tested positive for cocaine. An arbitrator ruled this month that Colonial did not have just cause for termination, which was immediately appealed. One would think this would be an open-and-shut case.

The Union contended the termination was without just cause and took the grievance to arbitration. Fully expecting to be justified, Colonial presented evidence that it had fired the driver based on its substance abuse policy as outlined in its employee handbook. In addition, Colonial said its drug abuse policy was rooted in the belief that this kind of reckless behavior “poses a threat to the business, to the public and to other members of the staff.”

Colonial also mentioned concerns with liability, reputation, insurance premiums and public safety – sound platforms all.

The Union argued that the driver’s positive drug test was due to recreational cocaine use at a party several days prior, and that he was not impaired at work. The arbitrator then shockingly concluded that Colonial lacked just case to terminate. Folks, we’re not making this up.

The verdict is still out, but Colonial immediately moved to vacate the award in federal court. Oftentimes, courts will vacate awards where an arbitrator exceeded authority. This should be one of those cases, right?

The case highlights several misconceptions about drug use and drug testing. The National Safety Council advises employers to maintain zero tolerance policies for employees in positions requiring safety protocols. Drug impairment greatly increases the probability of accidents and deaths. In fact, mandatory drug testing is required for Commercial Driver’s License (CDL) holders by the U.S. Department of Transportation.

A “zero-tolerance policy” means employers cannot ignore a positive test simply because an employee claims the drug was used at a party rather than the day of the test. Failure to enforce a zero-tolerance drug policy could likely generate legal claims of inconsistent treatment, not to mention losing one’s ability to protect employees and customers alike.

In this unique case, it appears a positive drug test for cocaine does not correspond with drug impairment, and the arbitrator essentially overruled the employer’s ability to detect drug use. According to the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services, “Individuals who fail a drug test are presumed to be impaired by the substance detected.”

Employers should have a comprehensive drug-free-workplace policy and drug-testing procedures that are followed consistently in all circumstances. Colonial appears to have followed those rules, but to no avail. We shall see the verdict.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.