Marijuana in system - terminate?

Sunny

Just wanted to get a feel for what others are doing when an employee registers with a small amount of cannabis in his bloodstream.
This employee is a diabetic and his supervisor noticed that he was unresponsive and behaving oddly. The Plant Mgr. took him to the ER where they treated him with glucose and gave him something to eat. He recovered immediately. The Plant Mgr. ordered a drug test. The employee then told the Plant Mgr. that he had smoked marijuana on the weekend with some friends and he was sure it was still in his system. (This was Monday.) He was right. Now management (they don't want to terminate this good worker) is concerned that A. We had no right to order the drug test since we knew it wasn't workers' comp and B. That terminating for away-from-work use would cause us to lose a subsequent arbitration. We are a union plant.

Any thoughts. I know we won't terminate but will probably make him sign an agreement for random testing for the next two years with immediate termination to follow any further positives.

Thanks.

ray a

We have a subsance abuse policy in accordance with the Drug-Free Workplace Act of 1988. We perform both prescreen and random drug tests. In addition, we have the option of sending WC cases for drug testing also. Anyone, per policy, who tests positive for any illegal substance is immediately terminated.

POPEYE

Same as ray a. Makes no difference when or where they used or how good or bad of an employee they are. Use it,you lose it!!!!!

Al Vreeland

The answer will depend on whether your policy andCBA allow testing under the circumstances (i.e., reasonable suspicion), whether the Plant manager had reasonable suspicion (or whether he knew it was a blood sugar issue), and whether the CBA allows termination for off duty drug use.

Also remember that any leniency here may set precedent for future cases - where you may not want to give a second chance.

Don D

Are you suggesting that somewhere in your experience, you have run across a CBA that allows 'off duty drug use'? If you have, I hope you don't claim credit for having participated in the negotiations.

Al Vreeland

I have seen drug and alcohol policies that provide for discipline for employees who are "under the influence," which is a different standard that testing positive (since THC can take 30 days to metabolize). I wouldn't recommend this standard, but you have to live with the contract you negotiate.

pork1

SUNNY: It reads to me that your company may not have a written policy that allows for "reasonable cause" drug testing. We have a "Need To, Want To, or Cause To" clause and any refusal to provide a urine sample (blood sample testing is even more sensitive) for testing and any positive result is justification for immediate termination. Week-end use has no bearing on the fact the individual was on the plant floor and under the influence with sufficient nanograms of THC in his body to provide a positive test result. Your seniors must be informed the company apparently would be without risk for termination of the individual who is at work with THC (the controlled chemical)in his or her body at sufficient levels to register a positive result. Additionally, you have a self proclaimed guilty verdict. Terminate and don't look back is my recommendation, otherwise, your ability to use this policy is damaged forever more.

PORK

Shadowfax

You may be right to be concerned about the er's right to take the test. Can you only test in case of WC injury? Did the ee consent in any event when the PM asked for the test? I think you need to analyze first your ability to use the test in support of the termination. If you can't - you probably lose the case. But, there is no concern to be wasted on the off site use of drugs - doesn't matter. If the test were available to support the discipline, or even argubly availabele, I would term immediately. If I were satisfied I couldn't use the test (because of a lousy policy) I would probably term anyway, let the union greive, then consider bringing back on last chance agreement as settlement. Still potential crummy precedent, but at least you will have taken some action that may be distinguishable later on.

Sunny

We do have a written drug policy that states we test "pre-employment, post-accident, and for reasonable cause." However, the problem is the Plant Manager knew what was wrong with the young man and knew we ordinarily wouldn't have tested since it wasn't work comp and didn't have cause. No Don, we didn't put any such thing in the CBA. I agree we should terminate or suspend pending discharge and allow him to take treatment (a one-time only deal) then submit to random testing. Don't think I'm going to get what I want.

I thank you all though and maybe I can print out your arguments and gain some ground.

Don D

Actually, Sunny, I was asking that question of the attorney who brought up the veiled possibility that off-duty drug use may be protected somehow by a contract.

szemcumo

When the diabetic ee passes out from continued marjuanna use (because if you don't term him he will continue)and injures himself or another ee who finds out you had a positive result and kept him it will not be pretty. Term now, good worker does not make a difference it is the result and the supervisor must have had reasonable suspension to order the DT in the first place.

Crout

In regard to the Union, if the Plant Mgr. went outside of policy in ordering the drug screen the Union will fight any discipline and if you terminate they could end up winning an arbitration on that basis.

Whatever

The most important question is what your union contract says. We are, also, a union shop. If we had an employee test positive, no matter when they took the substance, they are terminated (and I believe this should be held up in arbitration) This is a safety issue and therefore, the union will not arbitrate. Furthermore, under our contract, management has only to have a reasonable suspicion (neither the union nor management has figured out what "reasonable suspicion" means exactly). I would fire the ee.

Don D

The most important consideration is what your drug free workplace policy states and what your practice of following that has been. A union contract won't invalidate a drug/alcohol policy unless something incredibly stupid was done. The man had reasonable suspicion, he required a drug test which was failed.

hhaynal

I just dealt with a similar situation last week. Employee involved in minor MVA on premises and was required to undergo drug screen. Failed "insta-test" and sent outside for formal screen. Our Drug and Alcohol Policy then directs that the employee under circumstances such as described are (1) to complete a program through our EAP, and (2) while on 12-month probation, be subjected to random drug tests. Any further positive tests will result in immediate termination.

Seems to be along the same lines you wish to follow.

Sunny

Yes, that's what we are going to do. It's our past practice in drug/alcohol situations. We'll see whether the union challenges the validity of having the test taken.

Thanks to everyone for your help.

JM in ATL

Any drug test failure requires mandatory EAP counseling and random drug tests a minimum of six months. If ee refuses to either or - they are terminated immediately. Any random test failed is term immediately. Any EAP counseling missed/no show results in a written warning or suspension.