August 14, 2020

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August 14, 2020

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Drugs in the Workplace V. Public Safety: Zero Tolerance or Just This Once?

A recent ruling from the New York Supreme Court raises the on-going and crucial question over the proper balance between safety and individual employee rights.  In this particular matter, a school bus driver tested positive for marijuana on a random drug test and was let go by the school district. The bargaining agreement provided that the district "may terminate" employees who test positive for drugs. The employee grieved her discharge and an arbitrator reinstated her upon the condition that she get an evaluation from a drug counselor and pass a drug test (something that is not that difficult if you know it is coming). The school appealed citing the need to protect student safety. The Court, however, upheld the arbitrator. This type of opinion is not an aberration in employment law.

I will not go into details about deferral to arbitrators or other legal aspects. However, it does raise the question about whether zero tolerance drug policies should be bargained and implemented by employers, particularly for safety-sensitive positions such as bus drivers, truck drivers, or really anyone who, if they cause an accident due to being under the influence, is likely to injure co-workers or the public. Although the arbitrator and finally the courts seemed to think that counseling and another drug test was sufficient to assure that this employee would not pose a risk going forward, this seems to miss the point. 

In certain safety-sensitive positions, the safety of others should be the first and, possibly only, concern. If the precedent is that you get at least one pass for being stoned at work, then what is the deterrent to others doing the same up until they get caught?  Just use your get out of jail free card. As a parent, I can state that I do not want any discipline system that allows bus drivers to think they can drive my children while high. I want them to have the deterrent of believing that if they use drugs and get caught, they are gone. Whether zero tolerance policies for drug or alcohol use will survive scrutiny by the civil rights agencies may be an open question. But I doubt too many of us are willing to accept the risk that a second chance policy creates, whether that is with our children on the school bus or our loved ones on an airplane.  Safety first.

© 2020 Varnum LLPNational Law Review, Volume III, Number 69


About this Author

John Patrick White, labor, employment and education lawyer, varnum

Pat's practice concentrates on the full spectrum of civil rights issues including race, gender and disability matters, free speech and electronic privacy issues in the workplace. In addition to litigation, he also does traditional labor work, including negotiation and arbitration, both for public and private sector clients. He also maintains a strong background in education law, representing school districts, community colleges and colleges and universities, both with respect to employment issues as well as student issues.