September 24, 2021

Volume XI, Number 267

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Suspension of Employee Based on Marijuana Odor and Positive Test Result Did Not Violate CBA

A strong odor of marijuana was sufficient to constitute reasonable suspicion to test, and a positive drug test result constituted just cause for a ten-day suspension, an arbitrator ruled in denying an employee’s grievance.  ZF Active and Passive Safety and UAW, Local 1181, 20-2 ARB ¶ 7646 (Mar. 17, 2020).

The union and the employer, a manufacturing plant, were parties to a collective bargaining agreement (“CBA”) that permitted the employer to order a drug or alcohol test if the supervisor had reasonable suspicion to believe the employee may be under the influence of drugs or alcohol.  The CBA also provided for a 10-day suspension on the basis of usage.

Here, the employee brought work-related concerns to the attention of management and then went on a scheduled break.  After the employee returned from his break, the employee’s supervisors went to his work area to address his concerns.  The supervisors observed a strong smell of marijuana and ordered that he submit to a drug test in accordance with the CBA. When informed he would be sent out for drug testing, the employee admitted to Human Resources that he would test positive.  Predictably, the employee tested positive and thus, the employer imposed a 10-day suspension.

In challenging the suspension, the union argued that a combination of smelling marijuana and the positive test result were insufficient to justify the suspension because the CBA — in using the term “usage” — required evidence of impairment.  The arbitrator disagreed and determined “usage” was proven by the positive test results, i.e., a positive drug test can be equated with being under the influence regardless of the status of observational evidence.  Under the parties’ CBA, the employer had just cause to issue the 10-day suspension from a combination of smelling marijuana and the positive test result.  Accordingly, the arbitrator denied the employee’s grievance.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 281
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About this Author

Associate

Mary-Ann P. Czak is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

631-247-0404
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