CHAPTER 12 – DRUG-FREE WORKPLACE

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 LEXIS 4962 (unpublished opinion), upheld the termination of this firefighter / EMT, finding that his job duties required good judgment and a high degree of public trust.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.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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