Latest Thinking

Drug Testing and Enforcement - Part II

In part one of this two-part series on employer drug testing -- published on Aug. 3 -- we analyzed federal and New York law that affects employers' discipline and dismissal of drug users, in order to illustrate how employees may successfully implement or maintain drug testing programs that weed out current drug users while protecting the rights of rehabilitated or rehabilitating drug addicts to gainful employment.   

In this article, we continue our discussion by analyzing the Second Circuit's very recent en banc decision in Buckley v. Consolidated Edison Co., Docket No. 96-9039 (2d Cir. Sept. 11, 1998), in which the court rejected a former employee's challenge to his employer's procedures for performing drug tests under the Americans with Disabilities Act (ADA).   

In Buckley, the former employee argued that his dismissal for failure to supply urine for his employer's drug test was unlawful, because the employee had a bladder disorder that limited his ability to urinate in the presence of others.  

As we discuss below, the Second Circuit's decision rejecting this claim should provide some measure of comfort to employers because: (1) it validates the use of urinalysis as a reasonable means of drug testing; (2) it confirms that an employer may test former and recovering substance addicts with greater frequency than other employees; and (3) it points out that under the ADA, an employer has an obligation to reasonably accommodate only those disabilities that flow directly from a covered disability, namely, a disability that interferes with a "major life activity."   

After discussing Buckley, we focus on constitutional privacy issues raised by private employer drug tests and the effectiveness of employer challenges to arbitration awards based on both contract construction and public policy grounds.   

Frequency of Testing   

In Buckley v. Con Ed, the Second Circuit, sitting en banc, concluded that the ADA was not violated when an employer gave employees identified as recovering substance abusers urine tests for illegal drug use more frequently than they did to other employees.  

The court also added that it was not necessary under the ADA that employers make accommodations for neurogenic bladders, where the condition did not result from or amount to an ADA-covered disability.  This principle governed even where former and recovering substance abusers were far more likely to be dismissed as a result of their bladder disorders than similarly situated employees who were not former or recovering substance abusers.   

In Buckley, the plaintiff, a former drug and alcohol addict, suffered from a neurogenic bladder that made it difficult for him to urinate in public or on command.  

Plaintiff was ordered to report to Con Edison's medical facility for a drug test.  Plaintiff provided a blood sample but was unable to produce a urine sample in the time allotted and was denied his request for additional time. Shortly after, plaintiff voluntarily went to a local hospital and paid to have a urine test taken.  He then had the test results forwarded to Con Edison.   

Despite plaintiff's efforts, Con Edison fired him on July 1, 1994, stating as grounds for his dismissal the fact that he was a former drug and alcohol addict who had failed to provide a urine sample in the time allotted.  Plaintiff filed suit in federal court, alleging that Con Edison had violated the ADA, 42 USC £ 12101-12213, and the New York Human Rights law, N.Y. Exec. Law £ 296. Con Edison moved to dismiss Buckley's amended complaint, and the district court granted the motion.   

On appeal, a divided panel reversed, holding that, the complaint's assertion that Con Edison had available an alternative means of drug testing that would have accommodated the neurogenic bladder condition, stated a claim upon which relief might be granted under the ADA.  See Buckley v. Consolidated Edison, 127 F3d 270 (2d Cir. 1997). Con Edison's testing policy required that recovering and former addicts be tested about once a month, while employees who were not former substance abusers be tested about once every five years.   

The panel reasoned that Con Edison's testing resulted in disparate treatment of recovering addicts with neurogenic bladder conditions and employees who are not recovering addicts but who suffer from a neurogenic bladder.

Namely, the panel was troubled by the fact that neurogenic bladder employees who are former drug addicts will be fired within a month (assuming they cannot produce a sample in the allotted time), while neurogenic bladder employees who are not former addicts will also be fired (based on the above assumption), but only after an average of five years.   

Three Allegations   

In reversing the panel, the court explained that plaintiff's complaint alleged that Con Edison violated the ADA in three ways: (1) by testing for drugs by means of a urine test; (2) by testing former substance abusers more frequently than those not identified as former substance abusers, and (3) by failing to reasonably accommodate plaintiff's neurogenic bladder condition.   The court first concluded that a neurogenic bladder is not a "disability" within the meaning of the ADA, because an inability to urinate in public or "on command" does not limit a "major life activity."   In addition, the court rejected the assertion that a urine test was not a reasonable means of drug testing, noting both the statutory provisions and legislative history that underscore the reasonableness of urine tests.   

The court then concluded that "the more frequent testing of employees who have been identified as former substance abusers is not prohibited" and does not violate the ADA.  

As such, since Con Edison could have lawfully tested former and recovering addicts without testing its other employees at all, it was not unlawful for Con Edison to have tested former addicts about once a month and its other employees about once every five years.   

Finally, the court concluded that since plaintiff's neurogenic bladder was not a condition related to his status as a former substance abuser, it was not the type of disability afforded protection by the ADA.  

As such, Con Edison was under no legal obligation to make a reasonable accommodation of plaintiff's neurogenic bladder.   

Privacy Challenges   

On occasion, employees will challenge the right of private employers to use drug tests on constitutional privacy grounds under the Fourth Amendment and/or its state analog.  

New York courts soundly reject the argument that drug testing by a private employer raises privacy issues under the federal or State constitutions.   

For example, in Atkinson v. BCC Assocs. Inc., 829 F.Supp. 637 (SDNY 1993), the court held that the drug test of an employee by a private employer, even though it had been contracted by the New York City Triborough Bridge and Tunnel Authority to collect toll revenue, did not constitute a search under the federal or New York Constitution. 1   

However, where a private employer conducts a drug testing program in compliance with state or federal mandates, such as with an airline and the Federal Aviation Authority, employees have argued that the employer should be considered a "state actor" for purposes of the constitutional privacy analysis. As the Second Circuit explained in Drake v. Delta Airlines, 2 a private employer whose drug testing program renders it a "state actor" for purposes of the Fourth Amendment must ensure that it tests either in accordance with the parameters of its systematic drug testing program or that it acts on the basis of a reasonable suspicion, in order to avoid liability. 3   

Challenges to Awards   

For unionized employees, the appropriateness of discipline or discharge for illicit drug use typically is determined under grievance and arbitration procedures of a collective bargaining agreement.  In some cases, arbitrators have overturned employee discipline or discharge without giving significant weight or deference to an employer's strong interests in enforcing its anti-drug policies and providing a drug-free workplace.   

Employers often challenge such arbitral decisions in court, arguing that public policy or the collective bargaining agreement itself prohibits arbitrators from reinstating employees guilty of drug-related misconduct.   

In reported cases, employers rarely have succeeded in challenging arbitrators' interpretations of drug-testing programs set forth in collective bargaining agreements.  

As the court observed in Pepsi-Cola Albany Bottling Co. v. International Brotherhood of Teamsters, 1998 WL 315092 (NDNY) (June 10, 1998), *2, if the arbitrator explains his or her decision in terms that offer a "barely colorable justification," awards are not vacated even if the arbitrator's interpretation of the contract is "clearly erroneous."   

Employers have not fared much better with public policy challenges.  

As the Supreme Court has explained in United Paperworkers Int'l Union v. Misco Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 98 LEd2d 286 (1987), a court may refuse to enforce an arbitral award on public policy grounds only in the limited instances when the award violates an explicit public policy that is well defined and dominant.  

Moreover, the policy must relate to laws and legal precedents and not to some judicial perception of the supposed public interest.   

Several recent decisions, two by the Second Circuit and one by the First Circuit, addressing employer challenges to arbitral decisions on public policy grounds, demonstrate that employers often encounter resistance from courts that are reluctant to reverse arbitral awards, but they also show that such challenges have been accepted by some courts in appropriate circumstances.   For example, the Second Circuit in Saint Mary Home Inc. v. Service Employees Intern. Union, 116 F3d 41 (2d Cir. 1997), declined to vacate an arbitrator's award ordering the reinstatement of a nursing home employee who had been charged with possession of marijuana with intent to sell.  

The court noted that while there was a strong public policy against the use, possession and sale of drugs, there was no public policy against the reinstatement of an employee in a non-"safety-sensitive" position after a seven-month suspension without pay or benefits following an arrest for possession with intent to sell marijuana.   

No Absolutes   

The Second Circuit rejected the employer's argument that public policy categorically prohibits reinstatement in all cases where drug-related conduct occurs in the workplace.  Noting that the employee was being treated leniently by the state criminal system, the Second Circuit took the position that "the public policy related to the response for drug related conduct in the workplace is flexible and remedial." 4   

The court rejected the many cases cited by the employer in support of its argument, noting that in virtually all of them the employees worked in "safety sensitive" positions.  

As such, the public policy violated was far clearer than in the instant case, since, in several of the cases, the reinstated employees would have returned to positions with split-second responsibility for the lives and safety of hundreds of people.   

The First Circuit reached a result in favor of the employer where reinstatement of the employee discharged for failing a drug test was found to endanger public safety.  

In Exxon Corp. v. Esso Workers' Union Inc., 118 F3d 841 (1st Cir. 1997) the court overturned on public policy grounds an arbitrator's award reinstating an Exxon truck driver who tested positive on a drug test.   Noting the danger inherent in operating a gas truck while on drugs, the court explained:   

In our judgment, society has achieved a broad national consensus that persons should not be allowed to endanger others while laboring under the influence of drugs.  

This consensus is made manifest by positive law and translates into a well defined and dominant public policy -- indeed, a national crusade -- counselling against the performance of safety sensitive tasks by individuals who are so impaired. 5   The court added that "at this point in American history, few elements of public policy command the consensus that attaches to the policy against the use of controlled substances by those whose work potentially imperils others." 6   The court noted that judicial decisions, agency regulations, legislative enactments all combined to create "a well defined and dominant public policy." Among the statutes relied upon by the court were Drug Free Workplace Act of 1988 and the Omnibus Employees Testing Act of 1991. 7   

Even where an arbitral award reinstates an employee to a safety-sensitive job following the employee's failing a drug test, courts will not always find the reinstatement contrary to public policy.  For example, the Second Circuit in International Brotherhood of Electrical Workers v. Niagara Mohawk Power Corp., 143 F3d 704 (2d Cir. 1998), refused to overturn on public policy grounds an arbitral award reinstating an employee in a safety-sensitive position who had failed a random drug test.   

Nuclear Reactor   

In that case, the employee worked as a chemical technician in a nuclear plant where he performed safety-sensitive job duties related to the operation of a nuclear reactor.  

The employee was randomly drug tested during one of his scheduled shifts.  

The initial test was later determined to have been adulterated by the employee, and a new test was given that tested positive for cocaine.   

After attempts between the union and the employer to resolve the issue failed, the employee was terminated based upon the company's view that the collective bargaining agreement was violated when the employee manipulated the original test.  

An arbitrator reinstated the employee and the district court threw out the award holding that it violated public policy.    

On appeal, the Second Circuit reversed and reinstated the arbitral award. The court noted that the analysis did not change because the worker was employed in a "safety-sensitive" position.  Rather, the dispositive question was whether "ordering the conditional reinstatement of (the employee) necessarily violates public policy concerning nuclear safety."8   

The Second Circuit undertook an exhaustive review of the applicable regulations and concluded that "given the comprehensiveness of the regulations, it is significant that they do not discuss adulteration, let alone specify any penalty or sanction for adulterating a drug test." In addition, the court noted that "the regulations require only a relatively minimal response when nuclear power plant operators learn that an employee has failed a drug test for the first time." 9   

In addition, the court noted, somewhat surprisingly, that the regulations, insofar as they seem to contemplate rehabilitation of drug users as a significant goal, do so at a risk to public safety. 10 As such, the court concluded that if therewas any discernible public policy to be gleaned from the Nuclear Regulatory Commission regulations it was toward rehabilitation and reinstatement.   

Conclusion   

Both federal and state court decisions have recognized that drug testing programs play an important role in the workplace.  

As long as private employers are careful to structure drug testing programs so as to avoid the appearance that they are discriminating against rehabilitated or rehabilitating drug addicts they should prevail over employee challenges to the legality of testing.   

In addition, unionized employers should recognize the difficulty in overturning an arbitrator's award and, as such, they should endeavor to make explicit their authority to discipline, and even discharge, employees who test positive for illegal drugs before, and not after, difficult cases arise.   

Footnotes 

1 185 A.D. at 417, 586 NYS2d at 321.   

2 See, Drake v. Delta Airlines, 147 F3d 169 (2d Cir. 1998) (reversing district court ruling to dismiss complaint for consideration of whether Delta's initial drug test was reasonable under the Fourth Amendment).   

3 Id. at *3. 

4 116 F3d at 46.   

5 118 F3d at 848.   

6 Id.   

7 Id. 

8 143 F3d at 718.   

9 Id.   

10 Id. at 721. Reprinted with permission from the October 5, 1998 edition of the New York Law Journal © 1998 ALM Properties, Inc. All Rights Reserved. Further duplication without permission is prohibited.

Legalese