A federal district court in Massachusetts recently issued a decision that serves as a good reminder to employers to review their policies related to employee drug or alcohol use both on and off duty and ensure they are consistently applied. While the case involved a unionized employer, even non-union employers should review this decision as it may help protect them from liability.
In Colonial Wholesale Beverage v. Local 59, International Brotherhood Of Teamsters, the court reviewed an arbitration award regarding the termination of a union member. As is typical in union workplaces, Colonial Wholesale Beverage (Colonial)—a distributor of beer and wine—and the union were parties to a contract called a collective bargaining agreement (CBA). Pursuant to the CBA, Colonial needed “just cause” to terminate union members.
After Michael Jenney, a truck driver with a commercial driver’s license (CDL), tested positive for cocaine during a routine drug test, Colonial terminated his employment claiming his positive drug screen violated its drug use policy. Under the terms of the CBA, the union filed a grievance and the case was presented to an arbitrator. The arbitrator found that there was no just cause for termination and ordered that Jenney be reinstated. As permitted by law, Colonial turned to the court asking that it vacate the arbitration award. In conducting its limited review of the arbitration award, the court accepted as true the facts found by the arbitrator.
Prior to his termination, Jenney had worked for Colonial for approximately 17 years and had no prior disciplinary record. Colonial had a policy in its Employee Handbook (Handbook) that addressed drug testing, drug use and the ramifications for testing positive. The arbitrator focused on two provisions: (1) the Handbook prohibited “the unlawful manufacture, distribution, dispensation, possession or use of controlled substances while on the job;” and (2) it also prohibited employees from “reporting to work or working while under the influence of drugs or alcohol.”
To be clear, there was no evidence that Jenney went to work high on cocaine. That means Colonial terminated him for use of cocaine while off-duty. While the Handbook did reflect that Colonial was “committed to creating a drug-free and substance abuse-free atmosphere,” it did not use the phrase “zero tolerance” or state that a violation of the drug or alcohol policy will always warrant termination. The language in the Handbook was not as precise as Colonial believed it to be. In addition, in the past, Colonial had not terminated other employees who temporarily lost their CDL when they were charged or convicted of driving under the influence while off-duty.
Lastly, the union presented evidence at the arbitration that a Colonial human resources department document permitted employees “one chance to rehab with a certified substance abuse professional (SAP).” The posted document provided that once the certified SAP deems the employee free of drugs, that employee is allowed to return to work.
After finding out he tested positive for cocaine, Jenney actually admitted to using cocaine 10 days earlier at a house party but described it as “a one-time use based on a bad decision he made.” To his credit, after the termination, Jenney was evaluated by a certified SAP, completed all steps of the plan they developed together, including abstinence from drugs and alcohol confirmed by urine testing. As a result, his SAP cleared him to return to work, but Colonial continued to refuse to reinstate Jenney to his prior position.
Ultimately, the arbitrator found that Jenney violated Colonial’s drug policy by testing positive for cocaine. However, he also found, based on the language of the CBA and the Employee Handbook, that Colonial did not have a zero-tolerance policy for drug or alcohol offenses. Rather, he determined that Colonial violated its own policy by not allowing Jenney to return to work after he completed the plan developed with his SAP. Based on those findings, the arbitrator concluded that Colonial did not have just cause to terminate Jenney’s employment, but did have just cause to justify some less severe discipline. Accordingly, the arbitrator reinstated Jenney but did not award him back pay and thereby effectively upheld an unpaid suspension as the appropriate discipline for Jenney’s policy violation.
The Court found no reason to vacate the decision and confirmed it. The Court went a step further and, as requested by the union, found that Colonial should pay the union’s attorney’s fees after finding Colonial’s filing in court to vacate the arbitration award was irrational and frivolous.
Bottom Line
Most employees are at will, which means they can be terminated for any reason, as long as it is not illegal. Firing an employee for testing positive for illegal drugs in violation of a drug use policy is not illegal. Problems arise, however, when an employer does not consistently apply its policies. If you have a zero-tolerance policy for drugs and alcohol at work, then practice what you preach. Fire anyone who violates the policy. If you are going to create exceptions, thereby treating some employees more favorably than others, you are undermining the zero-tolerance policy and exposing yourself to potential discrimination claims. If you want the latitude to create exceptions, then you should not have a zero-tolerance policy and instead consider more flexible rules.