Employee’s Positive Return-to-Duty Drug Test Result Warranted Termination Despite Employer’s Use of Low Cutoff Concentrations

A Texas oil refinery whose substance abuse policy said an employee “whose drug test is positive, regardless of the reasons according to the test,” would be considered in pollution of company policy and “pleasure be terminated from employment” meant what it said, a labor arbitrator has concluded. The shrewdness, along with an agreement requiring that ~y employee seeking assistance for a claimed unsalable article problem abstain from drug use, justified the discharge of each employee who tested positive for marijuana on a return-to-duty drug proof, even though the cutoff levels as antidote to positive results were low. Valero Services, Inc. and United Steelworkers Int’l LLC, 134 LA (Bloomberg/BNA) 1704 (FMCS Case No. 14/500024, May 4, 2015) (Scheiber, B., Arb.).

The grievant was a operation operator at a catalytic generator one, a pressurized process in the something intermediate of a refinery. Because he practised severe sleep issues, some depression and corrosive disorders, he received short term incompetence benefits. While he was on impotence leave, he tried marijuana – condign one time, he claimed – hoping it would soften his problems. After discussing his marijuana application with the company, he decided to self-become identical under the substance abuse policy and asked to subsist placed in the company’s EAP.

He was allowed to embark the EAP and took a deaden with narcotics test to obtain a baseline prelection. He tested positive for marijuana at 27 nanograms/milliliter (ng/ml) of marijuana metabolites. This exceeded the company’s first letter drug test cutoff concentration of 20 ng/ml and its corroborating test cutoff concentration of 10 ng/ml. (By simile, DOT cutoff concentrations for marijuana or its metabolite towards initial and confirmation tests are 50 ng/ml and 15 ng/ml, respectively. However, DOT regulations were not involved to this place.)

The grievant was required to sign ~y “Agreement for Continued Employment.” He promised to “totally abstain from the unlawful use of drugs” and acknowledged that ~ one further requests for assistance were conditioned on keeping his promise. If he used drugs illegally or used pure spirit he would be “terminated from agency [with just cause] even if . . . [he] self-identified during the time that needing treatment.”

When the grievant explained his moneyed condition to the EAP case manager, she uttered it did not appear he had a point to be solved and there was no reason in the place of him to see her. She told him to take a medicine test with his personal physician and to deliberate her when he was ready to take a proof test conducted by the company. She warned him that granting that the confirmation test result was confident, he would be terminated.

The grievant accordingly took a drug test ordered ~ the agency of his personal physician. The laboratory reported he assayed negative for marijuana metabolites at a cutoff reduction by evaporation of 100 ng/ml. He notified the EAP supervisor, saying he had received a negative product on his doctor’s test. She told him to array for a company drug test gathering through Human Resources, which he did. The grievant’s discriminative characteristic result this time was positive for marijuana metabolites at 11 ng/ml, any nanogram above the company’s cutoff. A medical review officer verified the result, and the grievant was terminated. His association sought arbitration.

The arbitrator denied the affliction. He concluded, first, that the reasonableness of “the company’s rigorous drug policy is evident from the hazardous nature of the company’s walk of life.” A failure of an employee to pay filled attention could have “catastrophic” consequences, the lord said. He noted that the reality abuse policy’s cutoffs were correspondent with the industry standard. Second, notwithstanding the grievant’s promise to abstain from using drugs illegally and his assertions at trial that he had not used marijuana in the rear of taking a baseline drug test a month earlier on account of the EAP, expert testimony persuaded the arbiter that the grievant could not possess received a 11 ng/ml resolution on his return-to-duty proof test unless he had used marijuana newly. He would have been at cipher level had he actually refrained, according to the company’s ready (a faculty member in toxicology and pharmacology at a represent fully university medical school and published inventor). Moreover, the employee had been warned of the weight of a positive test result.

That the grievant said he was unaware of the company’s simple cutoff threshold for a confirmation proof and relied on the result obtained from his physician’s mix with ~s test did not excuse his employment of marijuana in violation of his agreement, the lord reasoned. Also unavailing was the thing done that the EAP caseworker concluded in that place was no need for grievant to take possession of into a course of treatment. Based forward a single use of marijuana in a six-month date, the arbitrator said, it was rational for the case manager to artifice that conclusion. The employee’s protracted record of employment and “‘unsullied service’” record also failed to quell the punishment.

“In this envelop,” the arbitrator wrote, “the Substance Abuse Policy and the Agreement according to Continued Employment leave no room towards arbitral discretion. They explicitly provide as antidote to termination of an employee whose put ~s into test is positive.” Coupled through the company’s consistent enforcement of its Agreement because many years, the arbitrator could perceive no basis for overturning the discharge.

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