December 20, 1995

Dear Human Resource Professionals,

It has been too long since my last newsletter, and I had certainly planned to not wait this long between successive newsletters. I was waiting until the Civil Service Commission issued an important decision that it was working on evaluating a positive test for illegal drugs as cause for disciplinary action. That opinion was issued November 15th and discusses some important issues. That opinion was rendered in the Appeal Docket Number 10971.

In that case, Mr. Edwards voluntarily submitted to the collection of a urine specimen during duty hours, and that urine specimen tested positive for cocaine. The appellant was terminated based upon the policy of the Department of Agriculture. The Referee who heard the case, however, found that the policy as written did not allow such action by the appointing authority. The appointing authority filed an application for review, the Civil Service Commission studied the transcript and record of the proceedings before the Referee, and reversed the decision of the Referee. Because the Referee had granted the appellant's motion at the close of the case of the appointing authority, the Civil Service Commission remanded the matter to the Referee in order to allow the appellant to rebut the showing made by the appointing authority. Several findings made by the Commission in that decision warrant discussion here.

The Commission analyzed the jurisprudence on cause, and concluded that the orders of a superior, whether those orders are contained in policy or not, must be obeyed under pain of disciplinary action where that policy directive or order bears a rational relationship to the efficiency of the public service. The Commission concluded that the violation of such policy directive or order was cause, itself, without a showing that there was direct harm to someone, or that the flow of work was impeded in some way, or that there was some other tangible occurrence. The effect upon the ability of a manager to control his organization caused by disobedience to a policy directive or order was found to support cause for disciplinary action.

The Commission in Edwards found that the policy of the appointing authority strictly prohibited the presence in the body of illegal drugs. I would urge you here to check your drug policy to ensure that it tells employees in clear and direct language that which the appointing authority may do if the employee tests positive for drugs. It certainly is not necessary that the employee be told that he will be fired if he tests positive, but it must be clear to the employee what may happen to him if he does test positive. One of those things may certainly be a termination. What I find is often done, however, is that an appointing authority will require an employee to attend a drug

treatment program, and submit to periodic screenings thereafter, or be fired for the wrong. That is, it sometimes occurs that an employee at lunch will drink alcohol to the point that performance is impaired, or such that an obvious violation of policy exists, and the appointing authority is given an opportunity to force the employee to "dry out", or loose his job. It sometimes work, and it sometimes does not work, but is often worth a try.

It is not every policy directive, however, whose violation can support disciplinary action, but as the Commission pointed out in Edwards it is only the violation of a policy directive that bears a rational relationship to the efficiency of the public service that support cause for disciplinary action. The burden is upon the appointing authority to prove this rational relationship. In Edwards, the burden was upon the appointing authority to prove that the public service was served by the prohibition of cocaine in the blood stream. It should be here noted that it is not every violation of law that can support cause for disciplinary action. My favorite example is that of a radar detector in an automobile. That radar detector can only be used for one thing, i.e. violating the law, but I don't think anyone wants to argue that we should discipline employees for using fuzz busters. Speeding certainly does not further the common good of citizens of this state, but where it is done off duty there is no meaningful relationship to the efficiency of service in the executive branch of government. That is, in Edwards the appointing authority simply could not prove that the possession of cocaine was illegal, and successfully rest its case.

The Commission noted in its opinion that the appointing authority called an expert in forensic toxicology who testified that it was not possible to determine the effect of any measured amount of cocaine upon an individual. That expert testified that it was not possible to know whether the individual who tested positive was high or was coming down from a high.

The appointing authority also presented testimony of another expert in the field of internal medicine. That expert testified of the symptoms of a person high on cocaine, and the symptoms of a person who was coming down from such a high. All of those possible symptoms were found by the Commission to be "deleterious to the efficiency of the public service". That is, it did not make any difference whether the effect of a certain amount of cocaine upon an individual could be measured, as all of the possible effects were bad. The Commission concluded that this testimony, standing along, was enough to support a conclusion that there was a rational basis relating to a governmental interest for an appointing authority insisting that its employees not use cocaine. There was also further testimony.

That same expert in the field of internal medicine also had extensive experience as the Director of the Health Department for the City of New Orleans. Specifically, it appeared that he was intimately familiar with the drug policy of the City of New Orleans, and its effect upon the efficiency of the public service there. He testified that since the implementation of the drug policy the number of worker's compensation claims had dropped almost 50%, and that there were significantly fewer accidents involving the work force of the city. It was his opinion based upon these observations that persons who use cocaine would have less satisfactory work records, use greater leave, will abuse leave, and will have a greater number of accidents on the job. This, again, supported a conclusion that there was a rational basis relating to a governmental interest for an appointing authority insisting that its employees not use cocaine.

This same expert in the field of internal medicine testified in regard to numerous other studies by other governmental entities throughout the country regarding the effects of an enforced drug policy on the efficiency of the public service. All of these studies reached the same conclusion as had the expert regarding its effect upon the City of New Orleans. In regard to the studies, however, the Commission concluded that they had no probative value because they had not been properly introduced. In order for such studies to be introduced at trial the Commission found that there must be a showing that experts in the same field as the witness rely upon reports similar to the ones referred to by the witness in reaching an opinion on the subject upon which the witness is being asked to reach an opinion. Secondly, the Commission concluded that there must also be a showing that the studies have been published, which would allow an opportunity for published criticism, which, in turn, would allow the other side an opportunity to rebut the conclusions of the studies. Clear? This is meat for lawyers, and I would recommend that your attorneys who handle Civil Service matters be given a copy of the opinion in Edwards.

The Commission in Edwards then came to a different conclusion than had the Referee regarding the proper interpretation of the policy. The Commission concluded that the appellant had been told clearly in the policy that he could be subjected to termination if he tested positive for cocaine. As mentioned above, the Commission remanded the matter to the Referee to allow the appellant to put on his case. Before doing so, however, the Commission referred to the proper standard to be utilized by itself, and its Referees, in determining whether a penalty was too severe. The exact quote bears repeating:

"We do not believe that in determining the severity of the penalty levied by an appointing authority we should substitute our judgment for that of the appointing authority in the absence of a showing that the penalty is clearly disproportionate to the offense when considering all facts, or unless there is a showing of discrimination."

The phrase "when considering all facts" certainly gives a great deal of leeway, but I would recommend to your attorneys that this standard be stressed. It might also be accompanied by an argument that the real reason for the requirement limiting the discipline of employees to "cause" is to ensure that the reason is not political interference, or some other non-meritorious factor, and that once basic facts showing some wrong by the employee are established, the inquiry about the severity of the action should end.

I would urge you to read the entire opinion in Edwards.

Additionally, the protections of the Americans with Disabilities Act are not available to an employee who is a current user of drugs, whether illegal drugs or alcohol. While a person who is under treatment for drug abuse is entitled to use the leave granted by the Family and Medical Leave Act, that Act does not prohibit the disciplining of an employee who has violated a policy provision against the use of alcohol or other drugs. Worker's Compensation laws provide that an employee may not receive worker's compensation if the injury was caused by the employee's intoxication either via alcohol or drug use. Those laws specifically authorize post-accident testing and provide that if the person refuses such a test, it is presumed that the employee was intoxicated.

Your response to my first newsletter was very encouraging. As mentioned above, I will get these out on a much more frequent basis. You all gave me numerous suggestions on subjects to cover in future newsletters, and I will try to get to them all. If you have any more suggestions, please send them to me at any time.

Sincerely,

Robert R. Boland, Jr.
General Counsel