A warehouse fork-lift operator failed a random drug test, and was terminated from employment.  He worked for a beer and soft drink distributor, who had adopted a random drug testing policy for all safety sensitive positions.  At the hearing, the employee testified he had inadvertently ingested marijuana laced brownies at a private barbecue ten days before he was selected for the random drug test.  He stated he was unaware the brownies contained marijuana and ate “five or six brownies and that he felt fine afterward.” 

The Union argued the employee had an unblemished work history and that there was no requirement to terminate an employee who failed a drug test, only to remove them from a safety sensitive position.  They argued the employee had inadvertently ingested marijuana at a private picnic, and was never under the influence at work.

The Employer conceded, while they had not terminated all first time offenders of the policy, they had previously terminated three other first time offenders of the drug policy in the past 5 years.  The Employer argued the inadvertent consumption of marijuana defense was not credible, and was concocted in an effort to obtain unemployment compensation benefits.  The arbitrator agreed and found the testimony “neither credible nor plausible,” upholding the Employer’s decision to terminate.   

Throughout the decision, the arbitrator lays out facts which indicate the employer’s drug testing policy followed the requirements set out in state statute.  These include:

·         The employee had notice of the policy, having signed an acknowledgment form;

·         The employee was working in a safety sensitive position and therefore was subject to random testing;

·         The employee was provided an opportunity for a retest of the sample at his own expense; 

·         The employee was aware of the penalties which could be imposed for a failed drug test.

I have blogged in the past about how to adopt a drug testing policy which complies with state statute.  Employers who have adopted a drug testing policy according to state statute, will have a stronger case to support discipline for violations of the drug policy.  The union’s brownie defense is half-baked and a travesty to chocolate confection lovers.  Shame on the union for throwing a gooey chocolate mess at the wall, to see if anything sticks.   Really, brownies are a dessert, not a defense.