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A little Thursday lesson on the importance of consistency, precise language, and following your rules.
But before I do that, might you be interested in “Everything HR Ever Wanted to Know about Mandating COVID-19 Vaccinations in the Workplace“? If learning more about religious accommodations, booster shots, getting proof of vaccination, and privacy rights pique your interest, then join me and my partners, Amy Epstein Gluck, David Renner, and Sid Steinberg, on September 1, 2021, at Noon EDT on Zoom.
The one-hour session is completely free. We’ll include some Q&A time. Just don’t expect to receive any legal advice; we get paid for that.
You and all of your friends can register here. Space is limited. So, I wouldn’t wait if I were you.
Meet Bob.
Bob took a random drug test at work and tested positive for cocaine. So, Bob got fired. But, since Bob is a union member, his union filed a grievance, which went all the way to arbitration. The arbitrator ordered the company to reinstate Bob because the arbitrator concluded that Bob’s employer did not fire him for just cause.
Did Bob use cocaine? Yep, he readily acknowledged that he consumed cocaine at a house party ten days earlier.
Did the company have a policy in its handbook that addressed drug testing, drug use, and the ramifications for testing positive? It did.
So, why did Bob get his job back?
The devil is in the details.
The arbitrator focused on two pages in the Employee Handbook. Specifically, language prohibiting “the unlawful manufacture, distribution, dispensation, possession or use of controlled substances while on the job.” (emphasis added). Plus, the handbook prohibited employees from “reporting to work or working while under the influence of drugs or alcohol.” (emphasis added).
There was no evidence in the record that Casey Jones, err, Bob, came to work high on cocaine.
Plus, while the Handbook did reflect the employer 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. Indeed, previously, the company had not terminated other employees who temporarily lost their CDL when they were charged or convicted of driving under the influence while off-duty.
Also, Bob’s union presented evidence that a company Human Resources department document permitted employees “one chance to rehab with a certified substance abuse professional (SAP).” The posted HR document provided that once the SAP deems the employee free of drugs, that employee is allowed to return to work.
To his credit, Bob entered treatment and finished clean.
Put it all together, and Bob gets his job back. (You can read the federal court decision here.)
Takeaways.
For most employers, especially those that are non-union, I’m not so concerned about the imprecise language in an employee handbook pigeonholing companies into firing only those employees who show up to work high on drugs as opposed to those who merely test positive. Most employees are at-will, and most handbooks have enough catchall language to afford companies the latitude to fire them for drug offenses.
What gets me is that 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, consider new, more flexible rules. Otherwise, you not only undermine zero tolerance but also set yourself up for potential discrimination claims.