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Has Drug Testing Become Irrelevant

December 17, 2000
Related Topics: Substance Abuse, Featured Article

nNovember 28, U.S. Supreme Court affirmed an arbitration decision that forced anemployer to reinstate an employee who twice tested positive for illegal drugs (EasternAssociated Coal Corp. v. United Mine Workers, No. 99-1038, November 28,2000).  The case involves a union employee at Eastern who held theposition of Mobile Equipment Operator (MEO). 

   Although the initial public reaction to the decision has not been whollypositive, employers should understand that the decision does not lessen theimportance of drug testing for safety-sensitive positions, and does not negatethe public policy for such testing. 

Eastern’sdrug testing policy:
   Eastern employees holding an MEO position are required to have a commercialdriver's license, and are subject to certain sections of the federal regulationspromulgated by the Department of Transportation (DOT), including regulationsprecluding the use of illegal drugs by person in safety-sensitive positions. 

   Eastern implemented a random drug testing policy for its MEO employees, inaccordance with the DOT regulations. The company's substance abuse policy statesthat any employee who tests positive for illegal drugs shall be "removedfrom any safety sensitive position and subject to disciplinary action up to andincluding termination." Importantly, under Eastern’s policy, terminationis not a mandatory penalty for a positive drug test. 

   Employee James Smith tested positive for illegal drugs in 1996, and wasultimately discharged from his MEO position at Eastern. After grieving thedischarge, Smith was reinstated by an arbitrator. The following year, he tested positive again, and was again discharged.When Smith grieved the 1997 discharge, an arbitrator returned Smith to work fora second time.

   Smith was removed from his safety-sensitive position, and was required toparticipate in a substance abuse program and undergo random drug testing. Inaddition, the second arbitrator required Smith to sign an undated letter ofresignation, which the company could date and accept if Smith tested positivefor illegal drugs within the following five years. 

   Although the company appealed the arbitrator's decision, that decision wasupheld by a federal district court and, ultimately, by the Fourth Circuit Courtof Appeals. The company appealed the decision to the U.S. Supreme Court, askingthat Court to determine that Smith's reinstatement violated a public policyagainst the use of illegal drugs by persons who hold safety-sensitive positions.The specific question addressed by the Supreme Court, however, was not whetherSmith’s drug use itself violated public policy, but whether the agreement toreinstate him did so. 

TheSupreme Court’s decision:
   In reviewing the narrow question presented, the Supreme Court refused to invokea public policy exception to the arbitrator’s decision. The Court specificallynoted that neither the relevant DOT regulations nor the applicable collectivebargaining agreement required termination of Smith’s employment, other thanfor “just cause.” The Court declined to overturn the arbitrator’sdecision, stating that the arbitrator’s determination that Smith’s secondpositive drug test did not present “just cause” for termination was not inerror. 

   The provisions of the Omnibus Transportation Employee Testing Act of 1991control drug testing of employees whose jobs involve certain safety-sensitivepositions, including the operation of trucks. 

   The Act, and the attendant DOT regulations, set forth sanctions for thoseemployees who test positive for illegal drugs. The Supreme Court noted that, under the Act, “rehabilitation is acritical component of any testing program.” 

   Further, neither the Act nor the regulations forbid the reinstatement of anemployee who fails a drug test twice, although both the Act and the regulationsinclude substantial penalties for such results. 

   The Supreme Court upheld the arbitrator’s award which, it said, violated nospecific provision of any law or regulation, and was consistent with theapplicable collective bargaining agreement. The Court specifically recognized that “reasonable people can differ asto whether reinstatement or discharge is the more appropriate remedy here,”but pointed out that “both employer and union have agreed to entrust thisremedial action to an arbitrator.” 

Practicaleffect of the decision:
   There is substantial case law to support the existence of a public policyagainst the performance of safety-sensitive jobs by employees under theinfluence of illegal drugs. However, in Smith's case, that public policy wastempered by the fact that neither the DOT regulations at issue nor any other lawmandated automatic termination of employment upon a positive drug test,nor did Eastern's own policy or collective bargaining agreement requireautomatic termination.  Further, the relevant public policy was actually addressed bySmith’s removal from his safety-sensitive position. 

   Although it is difficult to predict whether the Supreme Court’s result wouldhave been different had the company’s policies or collective bargainingagreement included language which required termination after repeated failuresof drug testing, such language would certainly assist employers in futurearbitrations by allowing the arbitrator that clear alternative.

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