Chapter 12 - DRUG-FREE WORKPLACE
Article 12-10 (also as 6-41)
CRIMINAL BACKGROUND CHECKS & RANDOM DRUG TESTING – D.C. FIRE & EMS DEPARTMENT – UNION APPEAL DISMISSED AS NOT RIPE SINCE FIRE CHIEF NOT YET IMPLEMENTED NEW POLICIES
On July 22, 2010, in Local 36 International Association of Firefighters v. Dennis Rubin & District of Columbia, the D.C. Court of Appeals (3 to 0), 999 A.2d 891, 2010 D.C. App. LEXIS 406, held that the union’s appeal will not be decided on the merits. The union had filed their lawsuit seeking a temporary restraining order and injunction before Fire Chief Dennis Rubin had actually implemented criminal background checks and random drug testing. The trial court, which ruled against the union, should have dismissed the union’s complaint for lack of “ripeness.”
The Court described the facts:
“As relevant here, in its complaint the Union requested a temporary restraining order, preliminary injunction, and permanent injunction directing the District and Rubin ‘to halt implementation of their criminal background check policy’ as set forth in the November 2007 order and the January 2009 memorandum. The Union alleged (1) that the announced programs violated the local and federal acts, and (2) that the result of any background check had to be provided only to the Department of Human Resources, not to FEMS [D.C. Fire & EMS] directly, as the Union feared it would.
There is no indication in the record that either Rubin's November 2007 order or his January 2009 memorandum has been implemented. In its complaint, filed at the end of February 2009, the Union warned of the consequences that would happen ‘[i]f Defendants [were] allowed to implement their criminal background check policy.’
At the trial on April 10, 2009, the Union conceded that although the District had announced in January that the program would begin in March, ‘[t]hat [i.e., implementation of the program] obviously hasn't happened yet.’ The Union nonetheless contended that the case was ripe for review because ‘defendants have stated that they [were] about to implement a very specifically described background check program.’ (Emphasis added.)
But in its briefs in this court filed on August 21, 2009, and November 25, 2009, the Union did not advise of any developments that have taken place since the complaint was filed or the trial was held. Rather, the Union continues to challenge the November 2007 order and the January 2009 memorandum, not any acts taken pursuant to those documents.
At trial, the court ruled that the Union's claim that the results of any background checks were required to go to the Department of Human Resources, not to FEMS, was not ripe for review because whether FEMS would request those records was ‘hypothetical.’ Without addressing ripeness, however, the court reached the merits of the Union's principal argument and concluded that the announced programs were not contrary to either the national or local acts because firefighters ‘have responsibility for the safety and well-being of children, the elderly or individuals with disabilities.’”
Federal statute, and a D.C. statute, both authorize criminal background checks for those who deal with children:
“The congressional statute is the National Child Protection Act of 1993, Pub. L. No. 103- 209, 107 Stat. 2490 (1993), codified, as amended, at 42 U.S.C. § 5119 et seq. The local statute is the Criminal Background Checks for the Protection of Children Act of 2004, D.C. Code § 4-1501.01 (2008).
For our purposes, the key provisions of the national act read as follows. Section 5119a (a)(1) authorizes States to ‘have in effect procedures . . . that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.’”
D.C. Government ultimately decides that all fire & EMS personnel need background checks, not just those in the Fire Prevention Bureau dealing with children.
“On July 25, 2006, the District adopted emergency rules that modified the coverage of the local act with respect to FEMS. Specifically, the July 25 rules provided that only ‘the Fire Prevention Bureau (FPB)’ within FEMS would be covered by the local act, ‘provided that the primary duties of any position designated as subject to the Act within the FPB shall require direct contact with children or youth, and the incumbent of the position would not otherwise be subject to a criminal background check or traffic record check in accordance with existing policies and practices for [FEMS].’ 53 D.C. Reg. 7276, 7282.
On May 5, 2008, the District reverted to its original understanding, and promulgated emergency rules that ‘delete[d] the language limiting agency coverage pursuant to the [local] Act for [FEMS] to specific organizational units within [FEMS].’ 55 D.C. Reg. 7145. Again, the District received no comments in response to the emergency rules, and the rules became final on July 28, 2008. 55 D.C. Reg. 8870.”
Legal Lessons Learned: FDs and EMS Departments need to conduct nationwide criminal background checks on all new sworn personnel. Random drug testing has traditionally been subject to collective bargaining. Columbus, Ohio FD, Cincinnati, Ohio FD, and numerous other random drug testing CBA provisions can be read at State Employment Relations Board site: http://www.serb.state.oh.us/ - SEARCH: FD random drug testing.
Article 12-9
DRUG-FREE WORKPLACE - DO YOU LET YOUR OFF-DUTY PERSONNEL “SLEEP IT OFF” AT FIRE STATION?
You may want to think twice about that practice. Please watch UC video prepared with help of SW Ohio Critical Incident Stress Management Team: Mock Suspension - Lt. with alcohol on his breath (May 2010).
Posted at www.uc.edu/cas/firescience - OFFICER DEVELOPMENT SEMINARS NOW ON LINE.
Article 12-8
OHIO: DRUG TESTING - OHIO BWC LAUNCHES NEW DISCOUNT PROGRAM – SEVEN PERCENT DISCOUNTS FOR RANDOM DRUG TESTING OF 15% OF SAFETY SENSITIVE POSITIONS AND SECOND CHANCE AGREEMENTS
On July 1, 2010, the Ohio Bureau of Workers Compensation launched their new Drug-Free Safety Program (DFSP). http://www.ohiobwc.com/employer/programs/dfspinfo/dfspdescription.asp.
The program includes the following discounts:
“Basic Level (4-percent discount)
DFSP Basic requires completion of a safety review within a time frame identified in BWC written program publications; timely accident reporting; accident-analysis training for supervisors; and development of a written DFSP policy with certain types of testing, such as pre-employment and/or new hire, reasonable suspicion, post-accident, return-to- duty and follow-up. In addition, employers must do annual employee education and supervisor training, and develop a list of local community resources that employees with problems can turn to for assistance as well as commit to employee health and well- being in the DFSP policy.
Advanced Level (7-percent discount)
DFSP Advanced requires employers to commit to putting together a safety action plan based on the results of the completed safety review and to meet all safety requirements of the Basic level. It also requires the same alcohol and other drug testing requirements as the Basic level along with random drug testing of 15 percent of the average annual total work force. For public employers, random testing applies only to safety-sensitive positions or functions, as defined by the employer. Advanced-level employers must offer annual employee education and supervisor training, and must expand available employee assistance to, at minimum, facilitating and paying for a substance assessment for employees testing positive for alcohol or other drugs who are offered a second chance and who retain employment. Advanced-level employers are not free to terminate an employee for a first positive alcohol or other drug test although there are some exceptions described in BWC policy.”
Legal Lessons Learned: Many FDs and IAFF Locals now have random drug testing and second chance provisions in their Collective Bargaining Agreements. See for example Cincinnati FD and Local 48’s CBA for 2007 – 2010 (Article 41), http://www.dol.gov/olms/regs/compliance/cba/pdf/cbrp2144.pdf.
Article 12-7
OHIO: ALCOHOL - CITY OF TOLEDO EMPLOYEE ORDERED TO PARK HIS CITY VEHICLE AND GIVE BREATHALYZER AND BLOOD SAMPLE AT HOSPITAL – ARRESTED FOR OVI AT HOSPITAL WHEN RESULTS RECEIVED - MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED UNDER GARRITY v. NEW JERSEY
On August 14, 2009 in State of Ohio v. Gary Groszewski, 2009-Ohio-4062 (Ohio App. 2009), 183 Ohio App.3d 718, the Court of Appeals (3 to 0) held that the trial judge should have suppressed the statements made by the defendant at the hospital. His consent to testing was not voluntary, but directed by his employer.
On Dec. 7, 2006, Mr. Groszewski reported to work at 7:00 a.m. as a utility worker in the Division of Transportation, and left in the city vehicle about 7:35 a.m. His supervisor said he smelled a faint odor of alcohol, but was not certain and therefore took no action. A few minutes after Mr. Groszewski drove off, a young lady came in and accused him of running her off the road in a red Jeep. The supervisor said that City of Toledo no longer uses red Jeeps, but that Groszewski owned a red Jeep and drives it to work.
Another Transportation employee then told the Supervisor that other co-workers had smelled alcohol on Groszewski. The supervisor called the Superintended of Transportation, and contacted Groszewski by radio and told him to return to the office. When he came in at 8:22 a.m., he took him to the Superintendent’s office – they both smelled a slight odor of alcohol. The supervisor explained to Groszewski, in the presence of his union rep., that he must be tested at a local hospital pursuant to his signed employment contract, and refusal would result in termination.
The supervisor drove Groszewski, and the union rep. to a local hospital. The breathalyzer showed a blood alcohol level of 0.093. The supervisor had this faxed to Superintendent’s office. Toledo Police Sergeant Richard Murphy, in uniform, was at the hospital for other business. The Toledo Director of Public Safety came to the hospital and asked him to talk with Groszewski’s supervisor and union rep. and they showed the Police Captain the test results.
The Police Captain then interviewed Groszewski, who said he “screwed up.” The Captain also noticed that Groszewski’s eyes were glassy. He also told Groszewski to perform two field sobriety tests: tough-the-nose test; one-legged-stand test. He then was arrested and charged with OVI. Two more officers arrived, and after being given warning of Ohio Administrative License Suspension, he consented to blood test.
His attorney later filed a motion to suppress the test results, and any police testimony about their observations. After a hearing, the trial judge denied the motion. Groszewski then appealed.
The Court of Appeals reversed the trial judge, holding that evidence must be suppressed under U.S. Supreme Court’s decision in Garrity v. New Jersey:
“The Fifth Amendment protects persons against compelled self-incrimination, and any testimony given under compulsion invokes the constitutional right…. If the state forces a public employee to choose between either answering incriminating questions or forfeiting his job for refusing to answer, the state cannot use the employee’s statements against him in any subsequent criminal prosecution if the employee chooses to answer because the statements were not given voluntarily. See Garrity v. New Jersey, 385 U.S. 493…. Thus, all statements made by the public employee under these conditions become immunized testimony.” [Citations omitted.]
The Court was critical of the “ambush tactics” employed by the City of Toledo:
“Although we do not condone appellant’s actions, neither can we condone the ambush tactics that were employed to create a criminal offense from an employee’s compliance with his employer’s drug / alcohol testing requirement. Therefore, under the specific facts and circumstances of this case, we conclude that the police obtained the results of the breathalyzer and blood tests in violation of appellant’s Fourth Amendment right against illegal search and seizure. As a result, we further conclude that the trial court erred in denying appellant’s motion to suppress the blood and breathalyzer test results, as well as any observations of any sobriety tests because appellant’s consent to testing was not voluntary at it related to any criminal charges.”
Legal Lessons Learned: FDs should handle results of blood and alcohol tests as an administrative disciplinary matter, not criminal charges.
Article 12-6
OHIO – NEW DUI STATUTE – POLICE HAVE AUTHORITY TO TAKE BLOOD, BREATH OR URINE TESTING FOR FELONY OR THIRD OFFENSE IN SIX YEARS
Effective September 30, 2008, a felony offender (such as death caused by drunk driver) or a 3 rd offender in 6 years must submit to a blood, breath or urine test, under newly revised Ohio Rev. Code 4511.191(A). This includes drunk boat operators, under Ohio Rev. Code 1547.111 (B) to (D).
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 12-5
Federal – Random Drug Testing – Firefighter at Great Lakes Naval Station Can Be Terminated For First Time Positive (Marijuana)
On March 7, 2008, in David Peterson v. Department Of The Navy, the U.S. Court of Appeals for the Federal Circuit, 2008 U.S. App. LEXIS 4962 (unpublished opinion), upheld the termination of this firefighter / EMT, finding that his job duties required good judgment and a high degree of public trust.
On April 25, 2006, Peterson’s random urine test was positive for THC, a metabolite of marijuana. He met with his Lieutenant, and admitted that he had attended a party, got drunk, and smoked marijuana. The court wrote, “Peterson claimed that this was a one-time occurrence caused by impaired judgment stemming from his inebriation by alcohol.”
The Naval Station does not deny it was his first positive. However, they went ahead with his termination. His Lieutenant issued him a Notice of Proposed Removal, which gave Peterson ten days to respond to the deciding official, a Captain. He filed a response, and he and a union representative met with the Captain, who then decided to terminate him.
The Court of Appeals upheld the termination. The 3-judge panel wrote, “Although harsh, the penalty of removal is not grossly disproportionate to an offense of drug use by an emergency responder in the Naval Station’s Department of Public Safety.” The Court also stated that each firefighter at the Naval Station had signed a memorandum confirming they were subject to random drug testing. Mr. Peterson signed the memo on March 4, 2003, which stated that the discipline for first-time offenders could range from reprimand to removal.
Legal Lessons Learned: Termination does indeed seem harsh.
Article 12-4
“Larry’s Legal Lessons: Baseball, Drugs & Fire Departments.” Article published 12-19-07 in www.firehouse.com; to read go to this web site and Search, “Bennett.”
Article 12-3
“Larry’s Legal Lessons: My Partner is a Recovering Alcoholic. Article published 8-18-07 in www.firehouse.com; to read article go to this web site and Search, “Bennett.”
Article 12-2
OHIO - FIRE CHIEF WITH DISABILITY (ALCOHOLISM) - MAY SUE CITY, AFTER MAYOR FORCED HIM TO RETIRE OF BE FIRED, WITHOUT FIRST EXHAUSTING ADMINISTRATIVE APPEAL TO CIVIL SERVICE COMMISSION
On Dec. 21, 2006 in D……… v. City of Euclid, 2006 WL 3743822 (Ohio App. 8 Dist)., 2006 – Ohio – 6772, the Ohio Court of Appeals for Cuyahoga County held that the former Fire Chief [we have deleted his name in this article] may proceed with his lawsuit against the city alleging violation of Ohio disability laws.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 12-1
DRUG TESTING - EMPLOYER COULD NOT PROVE EMPLOYEE WAS GIVEN A COPY OF DRUG POLICY – TERMINATED EMPLOYEE ENTITLED TO TRIAL
On August 11, 2006, the Iowa Supreme Court held in Jeri Rae McVey v. National Organization Service, Inc., that that an employee who tested positive for marijuana and was fired, could proceed with her lawsuit against the company. The trial court should not have granted summary judgment to the employer since there was no proof that Ms. McVey ever received a copy of the drug-free workplace policy.
The Iowa legislature had passed a drug-free workplace law, which requires that employers have a written policy that shall provide “uniform requirements for what disciplinary or rehabilitative actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive or alcohol test.” Iowa Code 730.5(9)(b).
The Iowa Supreme Court held in a prior decision in 2005 that discharge from employment may be based on an employee drug-testing program only if the program is being carried out in compliance with the Iowa code. Tow v. Truck Country of Iowa, Inc.,659 N.W.2d 36, 39 (Iowa 2005). The Iowa Supreme Court states, “McVey urges that the requirement that the employer adopt an employee drug-testing policy and deliver it to each employee is a necessary step in invoking the statutory authorization for such testing. We agree.” Trial judge reversed; case remanded.
Legal Lessons Learned: Fire & EMS Departments should have new members sign a receipt of the drug-testing policy. If your policy is contained in your employee handbook (such as the Model Employee Handbook we have for fire & EMS departments), then get a signed receipt for the handbook.
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