Arbitration Award
City of Oklahoma City
and
AFSCME Local 2406
January 24, 2002
Kathy L. Eisenmenger, Arbitrator,
selected by parties through procedures of the Federal Mediation and
Conciliation Service
The
parties agreed to a joint statement of the issue as follows: "Whether the
City had just cause to terminate the Grievant for a positive drug test? If not,
what is the appropriate remedy?"
The
Grievant stipulated that the case involved a random drug test. There was no
dispute between the parties that the Grievant tested positive for marijuana.
There was no dispute between the parties as to the testing procedures used or
the chain of custody of the Grievant's urine sample. The parties also agreed
that the matter of the Grievant's termination was properly before the
arbitrator.
Statement of Facts
At the time of his discharge, the
Grievant had worked for the City for seventeen (17) years and eleven (11)
months. He had been employed as an Equipment Operator II for the last eight (8)
years of his service with the City. The Grievant described his duties as
consisting of driving heavy equipment and operating large pieces of machinery.
The Grievant's position entailed that he possess a commercial driver's license
(CDL). The Grievant's supervisor described him as being a pretty good worker
and employee. His work record contained one letter of reprimand issued on
January 6, 2000, for failure to properly secure equipment; i.e., for failure to
remove the keys from a truck he operated and was subsequently stolen and damage
occurred. The Grievant was given a counseling notice on January 7, 2000, for
using one hundred (100) hours of sick leave during the year of 1999. He was
henceforward to provide medical documentation to support future sick leave
absences, and a review was scheduled for March 6, 2000. The Grievant received
no subsequent action from the City relative to his sick leave usage. The City
submitted documentation that the Grievant allegedly committed a safety
violation due to his alleged failure to conduct an adequate pre-trip
inspection. Lastly, the Grievant's performance evaluation for the annual rating
that ended on December 31, 1998, indicates that the Grievant received a
counseling for not coming to work on a snow day and for using sixty-nine (69)
hours of sick leave in calendar year 1998. The Grievant's last five (5)
performance evaluations going back to January 1995 show that he was rated as
"Fully Competent" in all years except one in 1995 where he was given
a higher rating of "Commendable."
On February 10, 1999, the Grievant
received training concerning the City's Drug and Alcohol Testing Policy. The
Grievant testified that he was told during the drug training that a positive
drug test for a CDL holder would result in automatic termination. (At the
arbitration hearing, he stated that he currently holds his CDL and offered to
produce it for examination, but the City declined.) On November 29, 2000, the
City and the Union entered into a new collective bargaining agreement which
incorporated the City's Drug and Alcohol Policy at Addendum E of the Agreement.
Pertinent provisions of the drug policy are reproduced above.
On
February 1, 2001, the Grievant was selected for a random drug and alcohol test
at the beginning of his shift. He provided a urine sample. There was no dispute
that the Grievant tested positive for tetrahydrocannabinol (THC), the signature
element in marijuana. Documents in evidence
indicated that the results of the Grievant's test were relayed to the medical
review officer (MRO) by telephone on February 6, 2001. According to the
Grievant, the MRO also discouraged the Grievant's option to have his split
sample tested by an independent laboratory inasmuch as such tests typically
remain positive. The Grievant did not request a second test be performed with
his sample given on February 1, 2001. He does not dispute the results of the
test.
On February 9, 2001, Mr. Lonnie G.
Fuller, Assistant Superintendent of the City's Street and Drainage Maintenance
Division, held a pre-determination (Pre-D) hearing with the Grievant. The
Grievant was informed of the test results and provided an opportunity to
explain his situation. The Grievant denied that he used marijuana. Previously,
when the Grievant had been apprised by the MRO of the positive test, the
Grievant offered that perhaps the medication he was taking for flu symptoms
contributed to the test. Apparently, this reason was rejected by the MRO. The
Grievant offered no other reason for the presence of marijuana substance in his
body. The Grievant testified that he was informed at the February 9, 2001,
Pre-D meeting that he was terminated. He also testified that Mr. Fuller offered
him the availability of the EAP but that when the Grievant attempted to gain
access to the program he was told they could not see him that day.
On February 9, 2001, the Union
accepted a grievance from the Grievant. The grievance alleged a contract
violation of Article 4 of violating the Grievant's due process rights and his
unjust termination. The grievance sought as remedial relief that the Grievant's
employment be restored and he be made whole. A date stamp on the grievance form
shows that the Department of Public Works received the grievance on February
12, 2001.
By letter dated February 12, 2001,
Mr. Fuller notified the Grievant of his termination effective February 9, 2001.
The reason cited in the letter was the "result of your [referring to the
Grievant] testing positive to an illegal substance."
In
addition to his job with the City, the Grievant worked for a restaurant called
the Bricktown Tapwerks. The Grievant worked the parking lot. A co-worker herein
referred to as BM worked in the restaurant's kitchen. Employees at the
restaurant ate there and were charged for at least some food items.
BM
testified that prior to the Super Bowl (scheduled on Sunday, January 28, 2001)
he baked some brownies in the kitchen at the Tapwerks. BM added marijuana to
his recipe and stored the brownies in the cooler at the kitchen. He had no
intent to share the brownies with anyone. BM also testified that he was aware
that his testimony about his use of marijuana is an admission of a crime.
At the conclusion of his shift at
the Tapwerks sometime between midnight on January 27 and 2:00 a.m. on January
28, 2001, the Grievant made a meal of a sandwich and a couple of beers. He
noticed cake in the cooler but abstained because the restaurant charged
"too much" for it. He also noticed a container of brownies. The
Grievant testified that he "stole" a couple of the brownies to eat
with his meal. He was unaware that the brownies belonged to BM for his personal
use. The Grievant was also unaware that BM had baked marijuana in them. The
Grievant's drug test occurred a few days later on February 1, 2001.
The Grievant testified that when he
ate the brownies he did not feel the affects of the marijuana. He offered that
the affects may have been obscured by his consumption of the food and a couple
of beers. The evidence does not contain a report of the test results. Thus, the
record does not show how much cannabinoids were present in the Grievant's urine
sample. A Department of Transportation Form dated February 13, 2001, showed
that the Grievant is 71 inches tall and weighed 232 pounds. There was also no
evidence presented in the record from a medical authority with regard to the
Grievant's capacity relative to the presence of marijuana in his body on
February 1, 2001, four or five days from the day he consumed the
marijuana-laced brownies.
When the Grievant learned of his
discharge, he expressed his consternation while at work at the Tapwerks. He
learned through a second co-worker at the restaurant of BM's brownies, recalled
that he had eaten a couple of them as described above and realized this could
have been the source of the illegal substance found in his urine sample. The
Grievant confronted BM concerning the brownies, and BM confirmed his actions.
BM also testified that when he went to retrieve his brownies to take to a Super
Bowl get-together with his family he noticed that they were "a little
light"-that some were missing from the container. Both the Grievant and BM
were somewhat vague and imprecise as to when they realized that the Grievant's
consumption of the marijuana-laced brownies was the cause of the positive drug
test, but they placed the confrontation after the Grievant's discharge was
known by him on February 9, 2001. BM testified that he had the confrontation
with the Grievant about two weeks after he retrieved his brownies and realized
someone had helped himself/herself to some of them. The Grievant testified that
he telephoned his Union representative, Mr. Larry Gooch, as soon as he learned
that the brownies were doctored, which was on or about February 12, 2001.
The Grievant testified that he told
no one in management of the brownie issue. Mr. Gooch testified that he
telephoned a labor relations official with the City named Brian McKeever on
February 12, 2001. According to Mr. Gooch, Mr. McKeever informed him that the
circumstance that the Grievant ingested marijuana unintentionally via the
brownies would not affect the City's decision because termination in the
Grievant's case was automatic. Mr. McKeever did not testify at the arbitration
hearing.
Mr. Fuller testified that during the
Grievant's Pre-D the Grievant did not offer the explanation of the marijuana
brownies, but if he had, it "doesn't matter." However, on
cross-examination, Mr. Fuller allowed that if the Grievant had information of
how marijuana got in his body and brought the person to testify about it that
the fact would have been considered by higher level management. He indicated
that the Grievant's case would have been referred to the Personnel Director or
the City Manager. Mr. Fuller also testified that "once an employee tests
positive [the City's] position was that he be terminated."
Mr. Fuller testified that in making
the recommendation to terminate the Grievant he considered several factors in
addition to the Grievant's positive drug test. He reviewed the Grievant's work
record and noted the Reprimand and sick leave counseling in January 2000. He
testified that using one hundred hours of sick leave was considered by the City
to be an abuse, although he conceded that one must accumulate at least one
hundred thirty (130) hours before progressing from a counseling warning to a
formal reprimand.
Additionally, Mr. Fuller testified
that he was not aware of the time frame in which the objectionable leave had
been used nor did he make any attempt to learn if the Grievant had bona fide
reasons for the leave or was a malingerer. Mr. Fuller did not consider the
Grievant's safety violation of July 18, 2000, because he had not seen the
document until the arbitration hearing. The Grievant testified without
refutation that he had not seen the document concerning the safety violation
before the arbitration hearing and had believed that the matter was dropped.
Mr. Fuller testified that he recommended termination solely because of the
City's policy to terminate CDL holders for positive drug or alcohol tests.
Mr. Gooch testified that he
participated in the negotiations of the new Agreement. He further testified
that he had not been made aware of any City policy that an employee holding a
CDL or safety sensitive position would be automatically discharged upon a
positive drug test. He added that he researched the Union's records and could
find no documents that notified the Union of such a policy developed by the
City. He noted that Section 5.4 of the Agreement required the City to notify
the Union before it instituted a change in policy that affected bargaining unit
employees. The City presented no written material of a change in policy or
notification of such to the Union, or any other entity.
On February 9, 2001, the Grievant
sought the services of an independent substance abuse counselor. He submitted
to a drug test that date. He also was interviewed and evaluated by the
counselor. On February 15, 2001, the counselor produced a letter on his
official letterhead that stated, in his opinion, the Grievant was
non-chemically dependent, had successfully completed a drug test and was
released to an employer for consideration in a safety sensitive position. The
Grievant did not produce the results of the drug test.
However, he did enter into
employment with a second employer named FiberSource as the driver of an
18-wheeler truck. He testified that he worked for FiberSource for about two
months until he voluntarily departed. The Grievant explained that the job
required a lot of hours on the road. The Grievant also submitted to a medical
examination, which included a controlled substance test, on February 13, 2001.
The City conceded that it bears the
burden of proof in cases of discharge. The proof must satisfy both the question
of wrongdoing charged against the employee and the appropriateness of the
punishment assessed. The City argued that it had cause to terminate the
Grievant when he tested positive for marijuana.
The City's drug and alcohol policy
was incorporated in the Agreement and complied with federal regulations. The
Grievant was randomly selected for drug testing. There was no dispute that he
tested positive for marijuana. The Grievant provided no explanation for his
positive test nor did he request a split sample be tested by an independent
facility. Although the Grievant claimed he unknowingly ingested marijuana and a
non-City employee attested to a possible source of the substance, the fact
remained that the Grievant tested positive for marijuana.
The City argued that the Grievant's
defense made little sense. The City posited that the Grievant did not advise
management of the brownies and should have come forward with the explanation
prior to the arbitration hearing if he sought to convince the City to reinstate
him.
The
City noted that the Grievant was required to hold a CDL as an Equipment
Operator II. His position subjected him to random drug testing pursuant to the
provisions of the Agreement and federal law. He tested positive for a
controlled substance, which is a serious infraction of the City's policies and
the terms of the Agreement. Section 16c of Addendum E of the Agreement allows
for termination if an employee tests positive for drugs.
The City argued that a positive drug
test from an employee who must have a CDL constituted an extremely serious rule
infraction for which summary discharge was appropriate. The City cautioned that
the Arbitrator not second-guess management's decision in matters of employee
discipline unless the employer has violated some specific provisions of the
Agreement or abused its discretion. The City cited Arbitrator Whitley P. McCoy
where he stated, "The only circumstances under which a penalty imposed by
management can rightfully be set aside by an arbitrator are those where
discrimination, unfairness, or capricious and arbitrary action are proved-in
other words, where there has been an abuse of discretion." 1
The City argued that the commission of
an extremely serious infraction may result in summary discharge in
consideration of the employee's past disciplinary record, the employee's
knowledge of the rules and absence of discriminatory treatment. The City opined
that the Grievant's positive test constituted a serious infraction inasmuch as
the City cannot tolerate the abuse of controlled substances or the use,
possession, sale, distribution or having employees under the influence of
illegal chemical substances. Federal regulations require random drug tests of
commercial vehicle operators or others engaged in safety sensitive functions
because of the serious problem of drug use in our society. The City argued that
drug use has the potential to affect an operator's ability to operate a
commercial vehicle on public roads and create hazardous situations to employees
and the public. The City thus treated CDL positions as safety sensitive, and a
positive drug test more seriously than other disciplinary infractions. The City
relied on Section 16c in Addendum E in the Agreement for its action.
The City claimed that it made
distinctions between employees who hold CDLs and employees who do not and,
thus, were not in safety sensitive positions. Because the latter employee do
not present the potential for as much danger, the City recognized demotion or
suspension as a proper discipline for a first drug offense. However, the City
reiterated that a positive drug test from an employee who must hold a CDL
constituted an extremely serious rule infraction that was appropriate for
summary discharge.
The City noted that the Grievant was
aware of the drug policy and of the consequence of termination if he tested
positive. The City offered that since January 2000 the City consistently
discharged employees with CDLs who tested positive on a drug test. The Grievant
violated rules of which he was fully apprised.
The City asserted that in October
1998 it implemented federal drug testing. The City contended that since that
time its personnel department consistently advised that any commercial driver
who tested positive should be terminated due to the greater potential for harm.
Additionally, the Grievant was not demoted to a non-driving position because of
the prior discipline in his work record. The City asserted that even if the
policy of termination for a positive drug test had not been mandatory, the
Grievant would not have been a candidate for demotion to a non-driving position
because of his work record. He would still have been discharged.
The
Grievant did not dispute that he tested positive but he claimed that he did not
know that he had ingested marijuana. The Grievant asserted that BM, a co-worker
at the Bricktown Tapwerks, made some brownies laced with marijuana, stored them
at the restaurant's cooler and the Grievant consumed a couple of them without
knowledge that they contained marijuana. The Grievant did not know he had
ingested the substance until after his termination. He denied using marijuana
at all times during this action. The Grievant's defense, simply stated, is that
he may be technically guilty of violating the City's drug abuse policy, he did
not knowingly ingest marijuana.
The Grievant challenged the
automatic aspect of his termination. The Grievant asserted that under Section
16 of Addendum E of the Agreement the City had other remedies besides automatic
termination. The Grievant also asserted that the City's policy to automatically
terminate CDL holders but not other employees constituted disparate treatment.
One of the other remedies available to the City was to refer the Grievant to
the EAP.
The Grievant further argued that his
discharge was excessive in consideration of the type of conduct charged, his
eighteen (18) years of service with the City and that he had no prior serious
disciplinary actions.
The City argues that an arbitrator's
standard of review of a disciplinary action or discharge under the just cause
principle be that of abuse of discretion and cites one arbitrator's preference
in support of this position. Arbitrator McCoy's theory of the arbitrator's role
in determining whether just cause has been met is not the sole standard when
reviewing a disciplinary or discharge action under the just cause principle. A
less restrictive approach was followed by Arbitrator Harry H. Platt in his
Riley Stoker Corp. award.2 However, as noted in How Arbitration Works ,
arbitrators do not lightly interfere with management's decisions in discharge
and discipline matters, but that does not mean to suggest that they will
sustain an action found to be unjust or unreasonable under all circumstances.
The parties' Agreement and the
parties' stipulated issue incorporates the just cause principle when reviewing
the appropriateness of the Grievant's termination. The determination of whether
the City has just cause to terminate the Grievant is a two-part process. First,
the City bears the burden of proof to show that the Grievant committed an
offense or engaged in misconduct that warrants some form of disciplinary
action. The second prong of just cause is to determine whether the severity of
the action, in this case termination, was commensurate with the degree of
seriousness of the proven offense and whether the City followed other elements
of just cause. If the City fails to produce evidence sufficient to show that
the Grievant engaged in some form of misconduct that warrants discipline, the
analysis ends at that point. A penalty is not allowed under the just cause
principle if misconduct cannot be proved.
The City cites as the basis for the
Grievant's termination his positive drug test. The City's drug policy is
contained in Addendum E in the Agreement. No other evidence or documentation
was provided to supplement the provisions of Addendum E. Therefore, for the
purposes of this case, I find that the totality of the City's drug policy and
program to be limited to the provisions of Addendum E, the related provisions
in Article 15 reproduced above and the statutory references cited in the
Agreement at Article 15.
Section 15.2 requires that the City
and the Union abide by the plan set forth in Addendum E. A thorough review of
Addendum E reveals that there is no mandate to terminate an employee whose
position requires him/her to hold a CDL solely on the grounds of a positive drug
test. On the contrary, the City is required to consider the employee's total
work record when it considers action to be taken upon a violation of the
policy. However, the City must first determine that the employee did, in fact,
violate the drug policy.
The evidence in the record does not
support a finding that the Grievant violated the City's drug abuse policy as
set forth in Addendum E of the Agreement. According to the language in the
policy, a violation would occur where an employee used, abused, was dependent
on an illegal drug, was under the influence or in the possession of such a
substance, or sold or distributed an illegal chemical. There is no evidence in
the record to show or suggest that the Grievant abused an illegal drug, was at
work under the influence of one, was in possession, sold or distributed an
illegal substance. The Grievant presented credible evidence that he was not
chemically dependent on an illegal substance. The Grievant denied that he was a
drug user and his supervisors testified that he had given them no cause to
believe that he was a drug user. The City offered no evidence to the contrary,
except the positive test of February 1, 2001.
The Grievant's positive test for the
substance found in marijuana is the sole evidence of drug use. Generally, the
presence of an illegal substance in one's urine sample is axiomatic with that
person's use of the drug. A positive drug test constitutes a strong presumption
that the person tested has somehow used that drug. However, use is not the only
method by which a person may have the drug in his/her body. Federal regulations
and the plan at Addendum E takes this possibility into consideration. The MRO
is required to confer with the person tested to determine if the drug has been
absorbed into the person's body by some other avenue. The intent of this
requirement is to develop facts of intentional or negligent use of the drug
versus unintentional or unknowing absorption or ingestion of the illegal
substance.
Intentional use of an illegal
substance or negligence on the person's part that leads to absorption or
ingestion of the drug or chemical constitutes conduct that violates the City's
drug policy. By the same standard, an employee's unintentional and unknowing
absorption or consumption of an illegal substance does not violate the policy.
The latter is the case here. The credible facts in this record show that the
Grievant's positive test for marijuana is attributed to his consumption of two
of BM's marijuana-laced brownies. The Grievant ate the brownies either late on
January 27 or early on January 28. He credibly testified that he was unaware
that BM had baked them with marijuana. The Grievant tested positive for
marijuana on February 1, only a few days from the time he ate the brownies.
The
City understandably questions the truthfulness of the Grievant's defense.
Frankly, if the establishment of the marijuana-brownie defense was based solely
on the Grievant's testimony, I would not hesitate to dismiss it. It is simply
too easy a defense to contrive. However, BM testified credibly on pain of
criminal prosecution. Moreover, the facts reveal that he was not a close friend
or associate of the Grievant's. There is no evidence that would indicate that
BM fabricated his account of making marijuana-laced brownies for his personal
use. Thus, the evidence presented by BM fully corroborates the Grievant's
defense.
I
also find that the Grievant was not negligent in raising his defense after the
termination action took place. He was unaware that the brownies contained
marijuana until after his termination had occurred. He immediately informed his
Union representative of the situation, who in turn allegedly relayed this
information to an official in the City who has authority to deal with such
situations. The City did not refute that the
official had been so notified. Mr. Fuller made it clear in his testimony that
the City was not particularly open to reasons for the Grievant's positive test
inasmuch as the City had taken the position that termination was automatic when
a CDL holder tested positive.
I
find that the Grievant was not negligent by his actions when he consumed the
brownies containing marijuana that led to his positive test. The restaurant where
he held his second job allowed employees to eat on the premises. He partook of
a meal at the end of his shift there. The worse
that can be said of the Grievant's actions is that he helped himself to the
brownies in the cooler without permission. While this minor pilferage may not
be ethical it is a long way from negligently consuming an illegal substance.
The Grievant had no reasonable expectation that the brownies contained more
than the traditional ingredients. The brownies were in a public place presumably
unlabeled, and no one advised him of the illegal ingredient until after his
termination.
In
view of the foregoing, I find that the Grievant did not violate the City's drug
policy when he tested positive for the presence of marijuana above the screening
level. Inasmuch as the Grievant's off-duty conduct
of consuming brownies is not found to constitute misconduct of any sort, the
action to terminate the Grievant is groundless and violates Article 9 of the
Agreement. In sum, the termination lacks just cause.
In view of the finding of lack of
just cause to sustain the Grievant's termination, it would be mere dicta to
address the penalty assessment elements and affirmative defense of disparate
treatment raised in this case. No penalty may be imposed where there is a
finding that the employee's actions do not represent a form of wrongdoing.
Therefore, this award does not presume to enter into an area that exceeds the
grounds necessary to make a considered decision.
The
Grievant's termination is without just cause. The Grievant did not violate the
City's drug policy when he tested positive for marijuana by his unintentional
and unknowing consumption of marijuana-laced brownies baked by another
individual. The grievance is sustained.
It
is hereby ORDERED that the Grievant be immediately reinstated to his former
position as Equipment Operator II, conditioned upon his possession of a valid
commercial driver's license required by the position. Should the Grievant have
failed to have maintained his CDL, the City will allow a reasonable period for
him to apply and obtain the same and require the Grievant to submit to a drug
test for marijuana. Back pay and benefits will not be applicable during a
period that the Grievant may need to obtain a CDL. Additionally, the Grievant
must be offered any non-CDL bargaining unit position vacancy in the City's
Street and Drainage Maintenance Division during the period the Grievant seeks
his CDL.
If the Grievant currently possesses the appropriate CDL for the Equipment Operator II position, he shall be reinstated and that City will make him whole for any loss of salary, wages and other benefits to which he would have received but for the unjust termination. The Grievant is ORDERED to fully cooperate with the City to provide information concerning mitigation of back pay; i.e., income received by employment in substitution for his employment with the City. The City will render full back pay and benefits to the Grievant for his unemployment following his discharge by Dolese Brothers inasmuch as the Grievant's discharge from that employer was based on information it received by the City concerning the positive test and the Grievant's unjust termination for same.
The City will allow the Grievant to
reimburse his retirement account with the City in either lump sum or in a
schedule of incremental repayments to be set up between the parties. The City
will also restore the Grievant's sick leave balance to what it was at the time
of his unjust termination.
1 ELKOURI AND ELKOURI, How
Arbitration Works910 (BNA 1997), citing Stockhom Pipefittings Co., 1 LA 160,
162 (1945).
2 7 LA 764, 767 (1947), cited in How
Arbitration Works at 911.
Collective Bargaining Agreement Fiscal Year 2000-2001
Between The City of Oklahoma City
and
American Federal of State, County and Municipal Employees,
Local 2406
Article 5 Bargaining Unit Security
5.4 Except as specifically provided
in this Agreement, all rights and privileges currently enjoyed by members of
AFSCME Union shall remain and be applied as currently applied that are set
forth in the City Charter, the City Personnel and departmental rules,
regulations, and policies for the City of Oklahoma City. The Employer reserves
the right to make changes to the personnel and departmental rules, regulations,
and policies and will notify the Union when such changes are made. In the event
that the Union believes that such change violates the contract, it shall have the
right to file a grievance regarding the change.
Article 8 Contract Grievance Procedure
8.4 (d) With respect to the
interpretation, enforcement, or application of the provisions of this
Agreement, which do not relate to the statutory and charter authority of the
City Council and the City Manager, the decision, findings and recommendation of
the arbitrator shall be final and binding on the parties to this Agreement.
Article 9 Discharge and Suspension Cases
9.1 In the event an employee under
the jurisdiction of the Union shall be suspended from work for disciplinary
reasons or is discharged from his/her employment after the date hereof and
he/she believes he/she has been unjustly suspended or discharged, such
suspension or discharge shall constitute a case arising under the grievance
procedure. . . .
9.2 In the event it should be
decided under the grievance procedure that the employee was unjustly suspended
or discharged, the Employer shall reinstate such employee and pay full
compensation, partial or no compensation as may be decided under the grievance
procedure, which compensation, if any, shall be at the employee's regular rate
of pay at the time of such discharge. . . . It is understood that the
provisions of this section of the Agreement are procedural in nature for the
purpose of supplying maximum flexibility to settle discipline and suspension
cases prior to arbitration.
Article 15 Employee Assistance Program
15.1 The City of Oklahoma City
considers alcohol and drug abuse to be a treatable illness and a serious
problem which will affect an employee's ability to perform his/her assigned
duties and the City's ability to provide service to the citizens. Therefore,
the Mayor and City Council have ratified a Drug Policy.
15.2 The City and the Union have
agreed to the implementation plan as found in Addendum E. This implementation
plan is to be attached to the Drug Policy and responsibility for communicating
this plan is to be shared by the City and the Union.
15.3 The City will offer employees
an opportunity to participate in an Employee Assistance Program as described in
the Drug Policy.
References:
Oklahoma
State Law, Title 37 and Title 63
Federal
Controlled Substances Act, 21 U.S.C. 812
City of
Oklahoma City Personnel Policie
Drug Free
Workplace Act of 1988, Public Law 100-690 (1988)
ADDENDUM E
DRUG AND ALCOHOL TESTING POLICY
1. POLICY STATEMENT
The policy of the City of Oklahoma
City that the use, abuse, or dependency on illegal drugs, alcohol, and/or controlled
substances represent a threat to personal and public safety and property and is
in contradiction with Oklahoma City's organizational values which require
accountability to the citizens of Oklahoma City.
... Safety is a paramount concern of
the City and employees ... the influence of drugs and alcohol constitute a
serious risk to the public, to other employees and to themselves.
The City cannot tolerate the abuse
of controlled substances or the use, possession, sale, distribution or having
employees under the influence of illegal chemical substances and/or alcohol at
their work site or any time they are on duty. The City of Oklahoma City will
administer a program to educate employees regarding the hazards of substance
abuse and to ... such abuse.
Any employee found using,
possessing, selling, distributing or under the influence of an illegal chemical
substance, and/or alcohol during working hours or on City property, including
buildings, parking lots, and vehicles, will be subject to appropriate disciplinary
action, up to and including termination.
6. EDUCATION
The City of Oklahoma City has an
Employee Assistance Program available to it's [sic] employees....
Employees who voluntarily
participate in the EAP, or are required to participate as a condition of
continued employment, will be referred on a confidential basis. . . .* * *
8.3 Random and Scheduled Period
Testing
Certain classifications of
employees, as delineated in Section 8.3(b) below shall be required to undergo
drug and/or alcohol testing on a random selection basis or on a scheduled
periodic basis.
b. Random and/or scheduled period
testing shall include those employees who:
1. Are employed in safety-sensitive
positions. These employees shall include but are not limited to heavy equipment
operators and employees in classifications requiring a Commercial Driver's
License (CDL) A, B, or C class license.
2. Are required to participate in an
EAP as a condition of continued employment.
10. SUBSTANCES FOR WHICH TESTS MAY
BE GIVEN (INCLUDES THE RELATED METABOLITES)
B. Cannabinoids or Marijuana
16. DISCIPLINARY ACTION
a. A non-probationary employee with
a previously satisfactory work record may be given only one opportunity to
continue employment after an initial occurrence of a positive drug ... test, .
. . .
b. Continued employment, if offered,
shall be contingent upon the employee agreeing, in writing, to undergo random
or periodic drug and/or alcohol post-rehabilitation testing for two (2) years
and satisfactorily participating and completing the Employee Assistance
Program. . . .
c. If an employee tests positive for
drugs . . . , said employee may be subject to suspension, demotion, or
termination following a pre-determination hearing. In addition to the alleged
offenses, the appropriate course of action shall be determined based on the
employee's total work record, including but not limited to, any prior drug or
alcohol problems.