Can an Employer Discharge a DOT-regulated Employee Solely Based on a Positive Drug Test Result?

Is an employee who tests positive for any illegal substances automatically subject to termination? What constitutes a threat to public safety? In Eastern Associated Coal Corp. v. Mine Workers, James Smith worked as a member of a road crew where he had to drive “heavy truck-like vehicles” for Eastern Associated Coal Corporation (“Eastern”).[1] As the driver of heavy vehicles on public highways, James was subject to United States Department of Transportation (“DOT”) regulations which require random drug testing of employees in such designated “safety sensitive positions.”[2]

In March of 1996, Smith tested positive for Marijuana and Eastern sought to discharge him as a result.[3] After Smith’s union, United Mine Workers of America, took  the case to arbitration, the arbitrator decided that the positive drug test alone did not amount to the “just cause” requirement for termination.[4] As a condition for the reinstatement of his position the arbitrator required Smith to accept a 30 day suspension, he was also  ordered to participate in a substance-abuse treatment program, and was subject to undergo drug testing at the discretion of his employer or an approved Substance Abuse Professional for the next five years.[5]

Between April 1996 and January 1997, Smith passed four of the required return-to-duty drug tests, but he tested positive once again in July of 1997.[6] When his employer sought to discharge him for a second time, the arbitrator determined that Smith had been a good employee for over 17 years and he “had made a very personal appeal under Oath regarding his family” which led him to this one-time relapse; therefore, “just cause” was not met for discharge once again.[7]

Eastern appealed to the United States Supreme Court alleging that considerations of public policy made the arbitration determination unenforceable.[8] Since Eastern did not claim that the arbitrator acted outside the scope of his authority, they treated his award as a contractual agreement between Eastern and its union.[9]  The court then had to consider whether a contractual reinstatement requirement would fall within the legal exception that makes unenforceable a collective bargaining agreement that is contrary to public policy.[10] The Court found that the district court used the correct rationale when they held that in order to vacate an arbitration award on public policy grounds, the court must find that “an explicit, well defined and dominant public policy exists and the policy is one that specifically militates against the relief ordered by the arbitrator.”[11]

The main question in this case was not whether Smith’s drug use itself violated public policy, but rather whether forcing the company to reinstate him to his position did.[12] At the district court level, Eastern argued that Smith’s release from his position was justified because the DOT regulations articulates a well-defined and dominant public policy against the operation of dangerous machinery by employees who test positive for drug use.[13] According to Eastern, the DOT regulations were enacted primarily to protect the public from injury where an employee tests positive for drug use, despite a lack of evidence that he was under the influence of drugs while operating heavy equipment.[14] Eastern further argued that the Omnibus Transportation Employee Testing Act of 1991 (“The Act”) stated that “the greatest efforts must be expended to eliminate the use of illegal drugs, whether on or off duty, by those individuals  who are involved in [certain safety-sensitive positions, including] the operation of . . . trucks.”[15] The Court found, however, that the argument was flawed in that The Act goes on to say that rehabilitation is a critical component of any testing program, and the programs should be made available where appropriate.[16]

Eastern successfully argued that the public policy embodied in the DOT regulations is sufficiently well defined and dominant to support an order form the court to vacate the arbitrator’s award; however, the DOT regulations do not require that employees who test positive for drug use be automatically discharged.[17] Here, the arbitrator ordered reinstatement of Mr. Smith, subject to several conditions, including continued random drug testing and mandatory resignation in the event of a future positive drug test.[18] Because the DOT Regulations do not make it illegal to reinstate employees who test positive for drug use, it cannot be said that the DOT regulations “specifically militate against the relief ordered by the arbitrator” in this case.”[19]

DOT regulations specifically state that a driver who has tested positive for drugs cannot return to a safety-sensitive position until (1) the driver has been evaluated by a “substance abuse professional” to determine the type of treatment needed, (2) the substance-abuse professional has certified that the driver has followed any rehabilitation program prescribed, (3) the driver has passed a return to-duty drug test, and (4) the driver must be subject to at least six random drug tests during the first year after returning to the job.[20]

Here, the award did not condone Smith’s conduct or ignore the risk to public safety that drug use by truck drivers may pose; rather, the award punished Smith with an increased consequence for recidivist behavior, but it didn’t call for his termination.[21] This case demonstrates the delicate balance between the government’s and employers’ right to safety and the employees’ labor and contract rights. Employers should be cautioned that a termination is not necessarily warranted under the DOT regulations simply by virtue of a positive drug test. Employers may need to prove “just cause” as defined under state law, employment contract, and/or collective bargaining agreement in order to justify a discharge. Employers should really take the time to train their staff on what signs to look for in an intoxicated employee to prevent them from working in an impaired state, and familiarize themselves with the rules to reinstate those employees who have been found to be in non-compliance.

[1] E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 60 (2000). [2] Id; see also 49 C.F.R. § 40 (2020) (defining a safety sensitive position as “a job or position where the person holding this position has the responsibility for his/her own safety or other people’s safety.”). [3] Eastern, 531 U.S. at 60. [4] Id. [5] Id. at 60-61. [6] Eastern, 531 U.S. at 60. [7] Id. [8] Id. at 61. [9] Id. at 62. [10] Id. [11] E. Associated Coal Corp. v. UMW, Dist. 17, 66 F. Supp. 2d 796, 803 (S.D. W. Va. 1998). [12] Eastern, 531 U.S. at 62. [13] E. Associated, 66 F. Supp. 2d at 803-04. [14] Id. [15] Eastern, 531 U.S. at 62. [16] Id. at 64. [17] E. Associated, 66 F. Supp. 2d at 805. [18] Id. [19] Id. [20] 49 C.F.R. § 199 (2020). [21] Eastern, 531 U.S. at 62.



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