City of Oklahoma City
AFSCME Local 2406
January 24, 2002
Kathy L. Eisenmenger, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
The parties agreed to a joint statement of the issue as follows: "Whether the City had just cause to terminate the Grievant for a positive drug test? If not, what is the appropriate remedy?"
The Grievant stipulated that the case involved a random drug test. There was no dispute between the parties that the Grievant tested positive for marijuana. There was no dispute between the parties as to the testing procedures used or the chain of custody of the Grievant's urine sample. The parties also agreed that the matter of the Grievant's termination was properly before the arbitrator.
Statement of Facts
At the time of his discharge, the Grievant had worked for the City for seventeen (17) years and eleven (11) months. He had been employed as an Equipment Operator II for the last eight (8) years of his service with the City. The Grievant described his duties as consisting of driving heavy equipment and operating large pieces of machinery. The Grievant's position entailed that he possess a commercial driver's license (CDL). The Grievant's supervisor described him as being a pretty good worker and employee. His work record contained one letter of reprimand issued on January 6, 2000, for failure to properly secure equipment; i.e., for failure to remove the keys from a truck he operated and was subsequently stolen and damage occurred. The Grievant was given a counseling notice on January 7, 2000, for using one hundred (100) hours of sick leave during the year of 1999. He was henceforward to provide medical documentation to support future sick leave absences, and a review was scheduled for March 6, 2000. The Grievant received no subsequent action from the City relative to his sick leave usage. The City submitted documentation that the Grievant allegedly committed a safety violation due to his alleged failure to conduct an adequate pre-trip inspection. Lastly, the Grievant's performance evaluation for the annual rating that ended on December 31, 1998, indicates that the Grievant received a counseling for not coming to work on a snow day and for using sixty-nine (69) hours of sick leave in calendar year 1998. The Grievant's last five (5) performance evaluations going back to January 1995 show that he was rated as "Fully Competent" in all years except one in 1995 where he was given a higher rating of "Commendable."
On February 10, 1999, the Grievant received training concerning the City's Drug and Alcohol Testing Policy. The Grievant testified that he was told during the drug training that a positive drug test for a CDL holder would result in automatic termination. (At the arbitration hearing, he stated that he currently holds his CDL and offered to produce it for examination, but the City declined.) On November 29, 2000, the City and the Union entered into a new collective bargaining agreement which incorporated the City's Drug and Alcohol Policy at Addendum E of the Agreement. Pertinent provisions of the drug policy are reproduced above.
On February 1, 2001, the Grievant was selected for a random drug and alcohol test at the beginning of his shift. He provided a urine sample. There was no dispute that the Grievant tested positive for tetrahydrocannabinol (THC), the signature element in marijuana. Documents in evidence indicated that the results of the Grievant's test were relayed to the medical review officer (MRO) by telephone on February 6, 2001. According to the Grievant, the MRO also discouraged the Grievant's option to have his split sample tested by an independent laboratory inasmuch as such tests typically remain positive. The Grievant did not request a second test be performed with his sample given on February 1, 2001. He does not dispute the results of the test.
On February 9, 2001, Mr. Lonnie G. Fuller, Assistant Superintendent of the City's Street and Drainage Maintenance Division, held a pre-determination (Pre-D) hearing with the Grievant. The Grievant was informed of the test results and provided an opportunity to explain his situation. The Grievant denied that he used marijuana. Previously, when the Grievant had been apprised by the MRO of the positive test, the Grievant offered that perhaps the medication he was taking for flu symptoms contributed to the test. Apparently, this reason was rejected by the MRO. The Grievant offered no other reason for the presence of marijuana substance in his body. The Grievant testified that he was informed at the February 9, 2001, Pre-D meeting that he was terminated. He also testified that Mr. Fuller offered him the availability of the EAP but that when the Grievant attempted to gain access to the program he was told they could not see him that day.
On February 9, 2001, the Union accepted a grievance from the Grievant. The grievance alleged a contract violation of Article 4 of violating the Grievant's due process rights and his unjust termination. The grievance sought as remedial relief that the Grievant's employment be restored and he be made whole. A date stamp on the grievance form shows that the Department of Public Works received the grievance on February 12, 2001.
By letter dated February 12, 2001, Mr. Fuller notified the Grievant of his termination effective February 9, 2001. The reason cited in the letter was the "result of your [referring to the Grievant] testing positive to an illegal substance."
In addition to his job with the City, the Grievant worked for a restaurant called the Bricktown Tapwerks. The Grievant worked the parking lot. A co-worker herein referred to as BM worked in the restaurant's kitchen. Employees at the restaurant ate there and were charged for at least some food items.
BM testified that prior to the Super Bowl (scheduled on Sunday, January 28, 2001) he baked some brownies in the kitchen at the Tapwerks. BM added marijuana to his recipe and stored the brownies in the cooler at the kitchen. He had no intent to share the brownies with anyone. BM also testified that he was aware that his testimony about his use of marijuana is an admission of a crime.
At the conclusion of his shift at the Tapwerks sometime between midnight on January 27 and 2:00 a.m. on January 28, 2001, the Grievant made a meal of a sandwich and a couple of beers. He noticed cake in the cooler but abstained because the restaurant charged "too much" for it. He also noticed a container of brownies. The Grievant testified that he "stole" a couple of the brownies to eat with his meal. He was unaware that the brownies belonged to BM for his personal use. The Grievant was also unaware that BM had baked marijuana in them. The Grievant's drug test occurred a few days later on February 1, 2001.
The Grievant testified that when he ate the brownies he did not feel the affects of the marijuana. He offered that the affects may have been obscured by his consumption of the food and a couple of beers. The evidence does not contain a report of the test results. Thus, the record does not show how much cannabinoids were present in the Grievant's urine sample. A Department of Transportation Form dated February 13, 2001, showed that the Grievant is 71 inches tall and weighed 232 pounds. There was also no evidence presented in the record from a medical authority with regard to the Grievant's capacity relative to the presence of marijuana in his body on February 1, 2001, four or five days from the day he consumed the marijuana-laced brownies.
When the Grievant learned of his discharge, he expressed his consternation while at work at the Tapwerks. He learned through a second co-worker at the restaurant of BM's brownies, recalled that he had eaten a couple of them as described above and realized this could have been the source of the illegal substance found in his urine sample. The Grievant confronted BM concerning the brownies, and BM confirmed his actions. BM also testified that when he went to retrieve his brownies to take to a Super Bowl get-together with his family he noticed that they were "a little light"-that some were missing from the container. Both the Grievant and BM were somewhat vague and imprecise as to when they realized that the Grievant's consumption of the marijuana-laced brownies was the cause of the positive drug test, but they placed the confrontation after the Grievant's discharge was known by him on February 9, 2001. BM testified that he had the confrontation with the Grievant about two weeks after he retrieved his brownies and realized someone had helped himself/herself to some of them. The Grievant testified that he telephoned his Union representative, Mr. Larry Gooch, as soon as he learned that the brownies were doctored, which was on or about February 12, 2001.
The Grievant testified that he told no one in management of the brownie issue. Mr. Gooch testified that he telephoned a labor relations official with the City named Brian McKeever on February 12, 2001. According to Mr. Gooch, Mr. McKeever informed him that the circumstance that the Grievant ingested marijuana unintentionally via the brownies would not affect the City's decision because termination in the Grievant's case was automatic. Mr. McKeever did not testify at the arbitration hearing.
Mr. Fuller testified that during the Grievant's Pre-D the Grievant did not offer the explanation of the marijuana brownies, but if he had, it "doesn't matter." However, on cross-examination, Mr. Fuller allowed that if the Grievant had information of how marijuana got in his body and brought the person to testify about it that the fact would have been considered by higher level management. He indicated that the Grievant's case would have been referred to the Personnel Director or the City Manager. Mr. Fuller also testified that "once an employee tests positive [the City's] position was that he be terminated."
Mr. Fuller testified that in making the recommendation to terminate the Grievant he considered several factors in addition to the Grievant's positive drug test. He reviewed the Grievant's work record and noted the Reprimand and sick leave counseling in January 2000. He testified that using one hundred hours of sick leave was considered by the City to be an abuse, although he conceded that one must accumulate at least one hundred thirty (130) hours before progressing from a counseling warning to a formal reprimand.
Additionally, Mr. Fuller testified that he was not aware of the time frame in which the objectionable leave had been used nor did he make any attempt to learn if the Grievant had bona fide reasons for the leave or was a malingerer. Mr. Fuller did not consider the Grievant's safety violation of July 18, 2000, because he had not seen the document until the arbitration hearing. The Grievant testified without refutation that he had not seen the document concerning the safety violation before the arbitration hearing and had believed that the matter was dropped. Mr. Fuller testified that he recommended termination solely because of the City's policy to terminate CDL holders for positive drug or alcohol tests.
Mr. Gooch testified that he participated in the negotiations of the new Agreement. He further testified that he had not been made aware of any City policy that an employee holding a CDL or safety sensitive position would be automatically discharged upon a positive drug test. He added that he researched the Union's records and could find no documents that notified the Union of such a policy developed by the City. He noted that Section 5.4 of the Agreement required the City to notify the Union before it instituted a change in policy that affected bargaining unit employees. The City presented no written material of a change in policy or notification of such to the Union, or any other entity.
On February 9, 2001, the Grievant sought the services of an independent substance abuse counselor. He submitted to a drug test that date. He also was interviewed and evaluated by the counselor. On February 15, 2001, the counselor produced a letter on his official letterhead that stated, in his opinion, the Grievant was non-chemically dependent, had successfully completed a drug test and was released to an employer for consideration in a safety sensitive position. The Grievant did not produce the results of the drug test.
However, he did enter into employment with a second employer named FiberSource as the driver of an 18-wheeler truck. He testified that he worked for FiberSource for about two months until he voluntarily departed. The Grievant explained that the job required a lot of hours on the road. The Grievant also submitted to a medical examination, which included a controlled substance test, on February 13, 2001.
The City conceded that it bears the burden of proof in cases of discharge. The proof must satisfy both the question of wrongdoing charged against the employee and the appropriateness of the punishment assessed. The City argued that it had cause to terminate the Grievant when he tested positive for marijuana.
The City's drug and alcohol policy was incorporated in the Agreement and complied with federal regulations. The Grievant was randomly selected for drug testing. There was no dispute that he tested positive for marijuana. The Grievant provided no explanation for his positive test nor did he request a split sample be tested by an independent facility. Although the Grievant claimed he unknowingly ingested marijuana and a non-City employee attested to a possible source of the substance, the fact remained that the Grievant tested positive for marijuana.
The City argued that the Grievant's defense made little sense. The City posited that the Grievant did not advise management of the brownies and should have come forward with the explanation prior to the arbitration hearing if he sought to convince the City to reinstate him.
The City noted that the Grievant was required to hold a CDL as an Equipment Operator II. His position subjected him to random drug testing pursuant to the provisions of the Agreement and federal law. He tested positive for a controlled substance, which is a serious infraction of the City's policies and the terms of the Agreement. Section 16c of Addendum E of the Agreement allows for termination if an employee tests positive for drugs.
The City argued that a positive drug test from an employee who must have a CDL constituted an extremely serious rule infraction for which summary discharge was appropriate. The City cautioned that the Arbitrator not second-guess management's decision in matters of employee discipline unless the employer has violated some specific provisions of the Agreement or abused its discretion. The City cited Arbitrator Whitley P. McCoy where he stated, "The only circumstances under which a penalty imposed by management can rightfully be set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved-in other words, where there has been an abuse of discretion." 1
The City argued that the commission of an extremely serious infraction may result in summary discharge in consideration of the employee's past disciplinary record, the employee's knowledge of the rules and absence of discriminatory treatment. The City opined that the Grievant's positive test constituted a serious infraction inasmuch as the City cannot tolerate the abuse of controlled substances or the use, possession, sale, distribution or having employees under the influence of illegal chemical substances. Federal regulations require random drug tests of commercial vehicle operators or others engaged in safety sensitive functions because of the serious problem of drug use in our society. The City argued that drug use has the potential to affect an operator's ability to operate a commercial vehicle on public roads and create hazardous situations to employees and the public. The City thus treated CDL positions as safety sensitive, and a positive drug test more seriously than other disciplinary infractions. The City relied on Section 16c in Addendum E in the Agreement for its action.
The City claimed that it made distinctions between employees who hold CDLs and employees who do not and, thus, were not in safety sensitive positions. Because the latter employee do not present the potential for as much danger, the City recognized demotion or suspension as a proper discipline for a first drug offense. However, the City reiterated that a positive drug test from an employee who must hold a CDL constituted an extremely serious rule infraction that was appropriate for summary discharge.
The City noted that the Grievant was aware of the drug policy and of the consequence of termination if he tested positive. The City offered that since January 2000 the City consistently discharged employees with CDLs who tested positive on a drug test. The Grievant violated rules of which he was fully apprised.
The City asserted that in October 1998 it implemented federal drug testing. The City contended that since that time its personnel department consistently advised that any commercial driver who tested positive should be terminated due to the greater potential for harm. Additionally, the Grievant was not demoted to a non-driving position because of the prior discipline in his work record. The City asserted that even if the policy of termination for a positive drug test had not been mandatory, the Grievant would not have been a candidate for demotion to a non-driving position because of his work record. He would still have been discharged.
The Grievant did not dispute that he tested positive but he claimed that he did not know that he had ingested marijuana. The Grievant asserted that BM, a co-worker at the Bricktown Tapwerks, made some brownies laced with marijuana, stored them at the restaurant's cooler and the Grievant consumed a couple of them without knowledge that they contained marijuana. The Grievant did not know he had ingested the substance until after his termination. He denied using marijuana at all times during this action. The Grievant's defense, simply stated, is that he may be technically guilty of violating the City's drug abuse policy, he did not knowingly ingest marijuana.
The Grievant challenged the automatic aspect of his termination. The Grievant asserted that under Section 16 of Addendum E of the Agreement the City had other remedies besides automatic termination. The Grievant also asserted that the City's policy to automatically terminate CDL holders but not other employees constituted disparate treatment. One of the other remedies available to the City was to refer the Grievant to the EAP.
The Grievant further argued that his discharge was excessive in consideration of the type of conduct charged, his eighteen (18) years of service with the City and that he had no prior serious disciplinary actions.
The City argues that an arbitrator's standard of review of a disciplinary action or discharge under the just cause principle be that of abuse of discretion and cites one arbitrator's preference in support of this position. Arbitrator McCoy's theory of the arbitrator's role in determining whether just cause has been met is not the sole standard when reviewing a disciplinary or discharge action under the just cause principle. A less restrictive approach was followed by Arbitrator Harry H. Platt in his Riley Stoker Corp. award.2 However, as noted in How Arbitration Works , arbitrators do not lightly interfere with management's decisions in discharge and discipline matters, but that does not mean to suggest that they will sustain an action found to be unjust or unreasonable under all circumstances.
The parties' Agreement and the parties' stipulated issue incorporates the just cause principle when reviewing the appropriateness of the Grievant's termination. The determination of whether the City has just cause to terminate the Grievant is a two-part process. First, the City bears the burden of proof to show that the Grievant committed an offense or engaged in misconduct that warrants some form of disciplinary action. The second prong of just cause is to determine whether the severity of the action, in this case termination, was commensurate with the degree of seriousness of the proven offense and whether the City followed other elements of just cause. If the City fails to produce evidence sufficient to show that the Grievant engaged in some form of misconduct that warrants discipline, the analysis ends at that point. A penalty is not allowed under the just cause principle if misconduct cannot be proved.
The City cites as the basis for the Grievant's termination his positive drug test. The City's drug policy is contained in Addendum E in the Agreement. No other evidence or documentation was provided to supplement the provisions of Addendum E. Therefore, for the purposes of this case, I find that the totality of the City's drug policy and program to be limited to the provisions of Addendum E, the related provisions in Article 15 reproduced above and the statutory references cited in the Agreement at Article 15.
Section 15.2 requires that the City and the Union abide by the plan set forth in Addendum E. A thorough review of Addendum E reveals that there is no mandate to terminate an employee whose position requires him/her to hold a CDL solely on the grounds of a positive drug test. On the contrary, the City is required to consider the employee's total work record when it considers action to be taken upon a violation of the policy. However, the City must first determine that the employee did, in fact, violate the drug policy.
The evidence in the record does not support a finding that the Grievant violated the City's drug abuse policy as set forth in Addendum E of the Agreement. According to the language in the policy, a violation would occur where an employee used, abused, was dependent on an illegal drug, was under the influence or in the possession of such a substance, or sold or distributed an illegal chemical. There is no evidence in the record to show or suggest that the Grievant abused an illegal drug, was at work under the influence of one, was in possession, sold or distributed an illegal substance. The Grievant presented credible evidence that he was not chemically dependent on an illegal substance. The Grievant denied that he was a drug user and his supervisors testified that he had given them no cause to believe that he was a drug user. The City offered no evidence to the contrary, except the positive test of February 1, 2001.
The Grievant's positive test for the substance found in marijuana is the sole evidence of drug use. Generally, the presence of an illegal substance in one's urine sample is axiomatic with that person's use of the drug. A positive drug test constitutes a strong presumption that the person tested has somehow used that drug. However, use is not the only method by which a person may have the drug in his/her body. Federal regulations and the plan at Addendum E takes this possibility into consideration. The MRO is required to confer with the person tested to determine if the drug has been absorbed into the person's body by some other avenue. The intent of this requirement is to develop facts of intentional or negligent use of the drug versus unintentional or unknowing absorption or ingestion of the illegal substance.
Intentional use of an illegal substance or negligence on the person's part that leads to absorption or ingestion of the drug or chemical constitutes conduct that violates the City's drug policy. By the same standard, an employee's unintentional and unknowing absorption or consumption of an illegal substance does not violate the policy. The latter is the case here. The credible facts in this record show that the Grievant's positive test for marijuana is attributed to his consumption of two of BM's marijuana-laced brownies. The Grievant ate the brownies either late on January 27 or early on January 28. He credibly testified that he was unaware that BM had baked them with marijuana. The Grievant tested positive for marijuana on February 1, only a few days from the time he ate the brownies.
The City understandably questions the truthfulness of the Grievant's defense. Frankly, if the establishment of the marijuana-brownie defense was based solely on the Grievant's testimony, I would not hesitate to dismiss it. It is simply too easy a defense to contrive. However, BM testified credibly on pain of criminal prosecution. Moreover, the facts reveal that he was not a close friend or associate of the Grievant's. There is no evidence that would indicate that BM fabricated his account of making marijuana-laced brownies for his personal use. Thus, the evidence presented by BM fully corroborates the Grievant's defense.
I also find that the Grievant was not negligent in raising his defense after the termination action took place. He was unaware that the brownies contained marijuana until after his termination had occurred. He immediately informed his Union representative of the situation, who in turn allegedly relayed this information to an official in the City who has authority to deal with such situations. The City did not refute that the official had been so notified. Mr. Fuller made it clear in his testimony that the City was not particularly open to reasons for the Grievant's positive test inasmuch as the City had taken the position that termination was automatic when a CDL holder tested positive.
I find that the Grievant was not negligent by his actions when he consumed the brownies containing marijuana that led to his positive test. The restaurant where he held his second job allowed employees to eat on the premises. He partook of a meal at the end of his shift there. The worse that can be said of the Grievant's actions is that he helped himself to the brownies in the cooler without permission. While this minor pilferage may not be ethical it is a long way from negligently consuming an illegal substance. The Grievant had no reasonable expectation that the brownies contained more than the traditional ingredients. The brownies were in a public place presumably unlabeled, and no one advised him of the illegal ingredient until after his termination.
In view of the foregoing, I find that the Grievant did not violate the City's drug policy when he tested positive for the presence of marijuana above the screening level. Inasmuch as the Grievant's off-duty conduct of consuming brownies is not found to constitute misconduct of any sort, the action to terminate the Grievant is groundless and violates Article 9 of the Agreement. In sum, the termination lacks just cause.
In view of the finding of lack of just cause to sustain the Grievant's termination, it would be mere dicta to address the penalty assessment elements and affirmative defense of disparate treatment raised in this case. No penalty may be imposed where there is a finding that the employee's actions do not represent a form of wrongdoing. Therefore, this award does not presume to enter into an area that exceeds the grounds necessary to make a considered decision.
The Grievant's termination is without just cause. The Grievant did not violate the City's drug policy when he tested positive for marijuana by his unintentional and unknowing consumption of marijuana-laced brownies baked by another individual. The grievance is sustained.
It is hereby ORDERED that the Grievant be immediately reinstated to his former position as Equipment Operator II, conditioned upon his possession of a valid commercial driver's license required by the position. Should the Grievant have failed to have maintained his CDL, the City will allow a reasonable period for him to apply and obtain the same and require the Grievant to submit to a drug test for marijuana. Back pay and benefits will not be applicable during a period that the Grievant may need to obtain a CDL. Additionally, the Grievant must be offered any non-CDL bargaining unit position vacancy in the City's Street and Drainage Maintenance Division during the period the Grievant seeks his CDL.
If the Grievant currently possesses the appropriate CDL for the Equipment Operator II position, he shall be reinstated and that City will make him whole for any loss of salary, wages and other benefits to which he would have received but for the unjust termination. The Grievant is ORDERED to fully cooperate with the City to provide information concerning mitigation of back pay; i.e., income received by employment in substitution for his employment with the City. The City will render full back pay and benefits to the Grievant for his unemployment following his discharge by Dolese Brothers inasmuch as the Grievant's discharge from that employer was based on information it received by the City concerning the positive test and the Grievant's unjust termination for same.
The City will allow the Grievant to reimburse his retirement account with the City in either lump sum or in a schedule of incremental repayments to be set up between the parties. The City will also restore the Grievant's sick leave balance to what it was at the time of his unjust termination.
1 ELKOURI AND ELKOURI, How Arbitration Works910 (BNA 1997), citing Stockhom Pipefittings Co., 1 LA 160, 162 (1945).
2 7 LA 764, 767 (1947), cited in How Arbitration Works at 911.
Collective Bargaining Agreement Fiscal Year 2000-2001
Between The City of Oklahoma City
American Federal of State, County and Municipal Employees,
Article 5 Bargaining Unit Security
5.4 Except as specifically provided in this Agreement, all rights and privileges currently enjoyed by members of AFSCME Union shall remain and be applied as currently applied that are set forth in the City Charter, the City Personnel and departmental rules, regulations, and policies for the City of Oklahoma City. The Employer reserves the right to make changes to the personnel and departmental rules, regulations, and policies and will notify the Union when such changes are made. In the event that the Union believes that such change violates the contract, it shall have the right to file a grievance regarding the change.
Article 8 Contract Grievance Procedure
8.4 (d) With respect to the interpretation, enforcement, or application of the provisions of this Agreement, which do not relate to the statutory and charter authority of the City Council and the City Manager, the decision, findings and recommendation of the arbitrator shall be final and binding on the parties to this Agreement.
Article 9 Discharge and Suspension Cases
9.1 In the event an employee under the jurisdiction of the Union shall be suspended from work for disciplinary reasons or is discharged from his/her employment after the date hereof and he/she believes he/she has been unjustly suspended or discharged, such suspension or discharge shall constitute a case arising under the grievance procedure. . . .
9.2 In the event it should be decided under the grievance procedure that the employee was unjustly suspended or discharged, the Employer shall reinstate such employee and pay full compensation, partial or no compensation as may be decided under the grievance procedure, which compensation, if any, shall be at the employee's regular rate of pay at the time of such discharge. . . . It is understood that the provisions of this section of the Agreement are procedural in nature for the purpose of supplying maximum flexibility to settle discipline and suspension cases prior to arbitration.
Article 15 Employee Assistance Program
15.1 The City of Oklahoma City considers alcohol and drug abuse to be a treatable illness and a serious problem which will affect an employee's ability to perform his/her assigned duties and the City's ability to provide service to the citizens. Therefore, the Mayor and City Council have ratified a Drug Policy.
15.2 The City and the Union have agreed to the implementation plan as found in Addendum E. This implementation plan is to be attached to the Drug Policy and responsibility for communicating this plan is to be shared by the City and the Union.
15.3 The City will offer employees an opportunity to participate in an Employee Assistance Program as described in the Drug Policy.
Oklahoma State Law, Title 37 and Title 63
Federal Controlled Substances Act, 21 U.S.C. 812
City of Oklahoma City Personnel Policie
Drug Free Workplace Act of 1988, Public Law 100-690 (1988)
DRUG AND ALCOHOL TESTING POLICY
1. POLICY STATEMENT
The policy of the City of Oklahoma City that the use, abuse, or dependency on illegal drugs, alcohol, and/or controlled substances represent a threat to personal and public safety and property and is in contradiction with Oklahoma City's organizational values which require accountability to the citizens of Oklahoma City.
... Safety is a paramount concern of the City and employees ... the influence of drugs and alcohol constitute a serious risk to the public, to other employees and to themselves.
The City cannot tolerate the abuse of controlled substances or the use, possession, sale, distribution or having employees under the influence of illegal chemical substances and/or alcohol at their work site or any time they are on duty. The City of Oklahoma City will administer a program to educate employees regarding the hazards of substance abuse and to ... such abuse.
Any employee found using, possessing, selling, distributing or under the influence of an illegal chemical substance, and/or alcohol during working hours or on City property, including buildings, parking lots, and vehicles, will be subject to appropriate disciplinary action, up to and including termination.
The City of Oklahoma City has an Employee Assistance Program available to it's [sic] employees....
Employees who voluntarily participate in the EAP, or are required to participate as a condition of continued employment, will be referred on a confidential basis. . . .* * *
8.3 Random and Scheduled Period Testing
Certain classifications of employees, as delineated in Section 8.3(b) below shall be required to undergo drug and/or alcohol testing on a random selection basis or on a scheduled periodic basis.
b. Random and/or scheduled period testing shall include those employees who:
1. Are employed in safety-sensitive positions. These employees shall include but are not limited to heavy equipment operators and employees in classifications requiring a Commercial Driver's License (CDL) A, B, or C class license.
2. Are required to participate in an EAP as a condition of continued employment.
10. SUBSTANCES FOR WHICH TESTS MAY BE GIVEN (INCLUDES THE RELATED METABOLITES)
B. Cannabinoids or Marijuana
16. DISCIPLINARY ACTION
a. A non-probationary employee with a previously satisfactory work record may be given only one opportunity to continue employment after an initial occurrence of a positive drug ... test, . . . .
b. Continued employment, if offered, shall be contingent upon the employee agreeing, in writing, to undergo random or periodic drug and/or alcohol post-rehabilitation testing for two (2) years and satisfactorily participating and completing the Employee Assistance Program. . . .
c. If an employee tests positive for drugs . . . , said employee may be subject to suspension, demotion, or termination following a pre-determination hearing. In addition to the alleged offenses, the appropriate course of action shall be determined based on the employee's total work record, including but not limited to, any prior drug or alcohol problems.