Amicus Curiae Brief — SeaRiver Maritime, Inc. v. Exxon Seamen's Union

MOTION FILED (4

MAY 10 1996 -

No. 95-1637

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

SEARIVER MARITIME, INC..

Petitioner,

Vv.

Exxon SEAMEN’S UNION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF FOR AMICUS CURIAE,

INSTITUTE FOR A DRUG-FREE WORKPLACE,

IN SUPPORT OF PETITIONER

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

NANCY N, DELOGU

LITTLER, MENDELSON, FASTIFF,

TicHy & MATHIASON, P.C.

1225 I Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Institute for a

Drug-Free Workplace

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1637

SEARIVER MARITIME, INC.,

. Petitioner,

EXXON SEAMEN’S UNION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Pursuant to Rule 37.2 of this Court, the Institute for a

Drug-Free Workplace (“the Institute”), by its undersigned

counsel, hereby moves for leave to file its brief as an

amicus curiae in support of Petitioner, SeaRiver Mari-

time.* In support of its Motion, the Institute states:

The Institute is a non-profit coalition of private busi-

nesses and business organizations dedicated to preserving

the interests of employers and employees in effective and

responsible drug-abuse prevention programs. In this re-

gard, the Institute disseminates information to assist in

the development of corporate drug-abuse prevention and

treatment programs, and attempts to positively influence

* Prior to filing this Motion, the Institute sought the consent

of both parties to the filing of its brief, as required by the Court’s

rules. The Petitioner consented to the Institute’s request, but the

Respondent refused consent, necessitating this motion.

the development of the law on workplace substance-abuse

prevention throughout the United States. The Institute

has developed an enormous amount of information on

current laws, regulations, policies, and workplace practices

regarding substance-abuse prevention. In addition, the

Institute has extensive resources on the successes and

failures of workplace substance-abuse programs and what

measures have proven effective.

The Institute believes that its amicus curiae participation

will benefit the Court in this proceeding. The Institute

and its members bring a unique “hands-on” perspective to

the consideration of the efficacy and value of meaningful

drug-testing programs. Its members have implemented

such policies and applied them to sizable portions of the

nation’s work force and, thus, have substantial experience

with the benefits of effective programs. Accordingly, the

Institute and its members have an important perspective

on the critical policy issues involved in this case which

the Court should consider.

WHEREFORE, the Institute requests that the Court

grant its motion and permit it to file the accompanying

brief as an amicus curiae, in support of the Petitioner.

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

NANCY N. DELOGU

LITTLER, MENDELSON, FASTIFF,

TicHy & MATHIASON, P.C.

1225 I Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Institute fora

May 10, 1996 Drug-Free Workplace

TABLE OF CONTENTS

py Xe oF pe AARNE AEG Ona ss Se poaneTe

INTEREST OF THE AMICUS .................. LI 5

INTRODUCTION AND SUMMARY ......00. ow...

BIG iin cab sania nc itiah ahi hhiscechimeeee

I. A WELL-DEFINED AND DOMINANT PUB-

Il.

LIC POLICY DICTATES THAT DRUG- OR

ALCOHOL-ABUSING EMPLOYEES NOT BE

PERMITTED TO WORK IN SAFETY-

ey hs Bat yy | Nene nen ae

A. Each branch of the federal government re-

peatedly has enunciated a public pelicy that

seeks to prevent drug- or alcohol-impaired

employees from working in safety-sensitive

a a ib SE A

B. The states have recognized that public policy

forbids employment of drug- or alcohol-

abusing employees in safety-sensitive posi-

AEE SSS ee OR a a

PROHIBITING REINSTATEMENT OF

SAFETY-SENSITIVE EMPLOYEES WHO

REFUSE DRUG TESTS IS A NECESSARY

COROLLARY OF THE PUBLIC POLICY

WHICH GIVES PRIORITY TO PUBLIC,

WORKPLACE, AND ENVIRONMENTAL

A. Reinstatement violates public policy because

it encourages employees to refuse drug or

alcohol tests and undermines the ability of

5 lett tee hhh ee ee ee ee

ii

TABLE OF CONTENTS—Continued

Page

B. Employers with strong and effective drug-

testing programs properly treat a “refusal to

test” at least as severely as a “positive” test

ROSES SARS a OS I aE ENS Sie PIC 12

C. Reinstatement of employees who refuse drug

or alcohol tests violates public policy because

it drastically interferes with employer

efforts to avoid the placement in hazardous

positions of employees who abuse illegal

Gres “Or GEE crore cepsctrieiers 14

D. Reinstatement of a safety-sensitive employee

who refused to test sends the wrong signal

to courts, arbitrators, employers, and employ-

ees regarding a compelling public policy

EE ern ccegcentnccucstnocumaeeesltnoaanciiptntassatangeataeetth 17

COIN GEA TIBIIIN wcicensessnssccsstsctvesct~soenenatvansubersssebneosebubigsnoncssones 19

aca uN

iii

TABLE OF AUTHORITIES

Federal Cases Page

Baggs v. Eagle-Picher Industries, Inc., 957 F.2d

268 (6th Cir. 1992), cert. denied, —— U.S. ——,

12 Bi -Ge GOe CIRO AAR ck nn. 12

Delta Air Lines v. Air Line Pilots Ass’n, 861 F.2d

665 (ist Cir. 1988), cert. denied, 498 U.S. 871

CR iv ia icieiicviceettheierictddicctbislind whtiisttnetertonts 7

Exxon Corp. v. Baton Rouge Oil and Chemical

Workers Union, 77 F.8d 850 (5th Cir. 1996)... 7,17

Exxon Shipping Co. v. Exxon Seamen’s Union, 73

F.3d 1287 (3d Cir. 1996) (Exxon ITI) ............... 3

Exxon Shipping Co. v. Exxon Seamen’s Union, 11

F.8d 1189 (3d Cir. 1998) (Exxon IT) .................. 7

Exxon Shipping Co. v. Exxon Seamen’s Union,

998 F.2d 357 (3d Cir. 1993) (Exxon I) .............. 7

Gulf Coast Industrial Workers Union v. Exxon Co.

USA, 991 F.2d 244 (5th Cir. 1993), cert. denied,

U.S, ——-, 114 S.Ct. 441 (1998) ................... 6

Monroe v. Consolidated Freightways, Inc., 654

F. Supp. 661 (E.D. Mo. 1987) ......................-....---- 12

National Treasury Employees Union v. Von Raab,

GBD: TR OR CO oasis ce a 6

Newsday, Inc. v. Long Island Typographical

Union, 915 F.2d 840 (2d Cir. 1990), cert.

denied, 499 U.S. 922 (1991) ..........2....0.22.2..-----0-- 15

Skinner v. Railway Labor Executives’ Association,

460: Thi GOR Rae ee itt 6

United Food & Commercial Workers v. Foster

Poultry Farms, 74 F.8d 169 (9th Cir. 1995) ........ 7

State Cases

Banks v. Dep’t of Educ., 462 S.W.2d 428 (Ky.

OPA ie ee MER OU BR a a. 9

Clevenger v. Employment Security Department,

770 P.2d 866 (Nev. 1989) ..................---2..000000.--. 8

Dolan v. Svitak, 527 N.W. 2d 621 (Neb. 1995)........ 8

Farm Fresh Dairy v. Blackburn, 841 P.2d 1150

CGRin. SOT et ei i rh 8,11

Folmsbee v. Tech Tool Grinding and Supply, Inc.,

630 N.E.2d 586 (Mass. 1994) .............20.20020.2..... 12

iv

TABLE OF AUTHORITIES—Continued

Page

Gilmore v. Enogex, Inc., 878 P.2d 360 (Okla.

1994) sacintsibicenS iapbaieesbicisiabiisininab Steen tik ue ania Se atas 12

Luedtke v. Nabors Alaska Drilling, 884 P.2d 1220

CRM ABBE ta cecisanlicti steicabedlnctiedcenstavinienithindbstieis cant 12

Nekoosa-Edwards Paper Co. v. Indus. Com., 141

A Ae!) By OS | eer er oe 9

Warren v. Employment Security Department, 724

eo a ES Re eee Se eR 8

Federal Statutes

29 U.S.C.A. § 654(a) (1) (1985) 00. 14

Drug-Free Workplace Act of 1988, 41 U.S.C. app.

6 TOR wb oem ACEBOO) iach ecules, 5

Omnibus Transportation Employee Testing Act of

1991, 49 U.S.C, app. § 2717 (1994) 00... 5

State Statutes

TE a eee ae POO eee 11

1996 Wash. Legis. Serv. 127 (West) 0.00.00... 11

ALA. CODE § 25-5-51 (1998) ...... seb hibiamih tint Scupinaks 11

ARIZ. REV. STAT. ANN. § 28-619.01 (1993) ............... 8

ARIZ. REV. STAT. ANN. § 28-775 (1998) .........-.-....... 8

ARK. CODE ANN. § 11-10-514(b) (Michie 1994)... 8

FLA. STAT. ANN. § 440.101 (West 1998) .....0000 0... 11

FLA, STAT. ANN. § 627.0915 (West 1993) ................ 11

FLA. STAT. §§ 448.101-2 (West 1995) 0.0. 8

‘GA. CODE ANN. §§ 34-9-410 - 420. (Michie 1998)... 11

ME. REV. STAT. ANN. tit. 89-A, § 202 (West 1998)... 8

ME. REV. STATS. ANN. tit. 26 §§ 618-690 (West

pS Ra WORT ai ey Lem Lyte | 11

MINN. STAT. §§ 181.950-957 (1998) o.oo 11

Miss, CODE ANN. §§ 71-7-1 to -31 (1998) 0.0.0.0... 10

N.Y. Las, LAw § 592 (McKinney 1998) .................... 8

N.Y. Work. Comp. LAw § 10 (McKinney 1998)... 8

OKLA. Star. tit. 40, § 2-406A (1994) ooo. 8

OKLA, Start. tit. 40, §§ 551-565 (Supp. 1995) -shiiad 10

Pa. STAT, ANN. tit. 77 § 481 (Supp. 1995) ....... 9

R.T. GEN. LAWS § 28-88-2 (1986) 00000000 eceeen 9

UTAH CODE ANN. §§ 34-88-1 to -15 (1993)

Vv

TABLE OF AUTHORITIES—Continued

Federal Regulations Page

bak ke a 8, ae” | RRR eane 10

10 C.F.R. Ch. ITI, § 707.5(a) (1) (1994) 00. 6

FO a eines 6

14 C.F.R. Part 121, Appendix I (1994) .....00. 5, 10

Oe ae i i ics ces cnentsnvcnnene 5

46 C.F.R. § 4.06-5(c) (1994) 2... 10

GS CAPR, EEG RE CRO annonce ccesccccsccccc ccc cere sense 6

48 C.F.R. § 252.228-7004(c) (4) (i) (1994) 000. 6

GD GT is RG ER CLO) vnc ccecncscccccecccccecccsccesscoccteccasese 5

BP ee Be I IE baw nnn ncn cscnecscnceseescsseseccsecesensees 5

SD CP ies Pree CRD iio snn sche eccc cess 5, 10

GP ie te I COD onic ccesceccscencdhctsbechacdsecicind.. 10

OF te gi Oe I iii chcccen cic cocsencecscsvennsecccvees 10

49 C.F.R. § 219.608(b) (1994) ............000. a. 10

49 C.F.R. § 219.605(e) (1994)... 10

SeeEne es Coe ee a. 5

Surveys and Studies

Battling the Enemy Within, Time Magazine,

OE RN hit es 16

Institute for A Drug-Free Workplace. “Member

Survey: Workplace Policies Regarding a Re-

fusal-to-Test.” Washington, D.C. (May 1996)... 13

National Association of Plumbing-Heating-Cooling

_Contractors, The Construction Industry Survey

on Substance Abuse (April 1992) .................. 16

SmithKline Beecham, SmithKline Beecham Drug

Testing Index (March 1, 1996) |... 15

Substance Abuse and Mental Health Services Ad-

ministration, U.S. Department of Health and

Human Services, 1994 National Household Sur-

vey on Drug Abuse (September 1995) _............. 14

Survey of 1,006 Full-Time Employees, Aged 18

and Older, Working Outside of the Home, con-

ducted for the Institute for a Drug-Free Work-

place by the Gallup Organization, Princeton,

New Jersey (November 1995) ....00000000000000000000... 15

vi

TABLE OF AUTHORITIES—Continued

Page

Thomas E. Backer, Strategic Planning for Work-

place Drug-Abuse Problems, National Institute

Oe rr ee re ee 14-15

United States Postal Service, Personnel Research

& Development Branch, Office of Selection and

Evaluation, Preemployment Drug Testing: As-

sociations with EAP, Disciplinary, and Medical

Claims Information (July 1992) ..........0....000...0..- 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1637

SEARIVER MARITIME, INC.,

%s Petitioner,

EXXON SEAMEN’S UNION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE,

INSTITUTE FOR A DRUG-FREE WORKPLACE,

IN SUPPORT OF PETITIONER

ae: eee INTEREST OF THE AMICUS

The Institute for a Drug-Free Workplace (the “Insti-

tute”) is a non-profit coalition of major businesses and

business organizations dedicated to preserving the interests

of employers and employees in effective and responsible

drug-abuse prevention programs. The Institute includes in

its membership six of the ten largest companies in the

United States, nearly half of the “Fortune 50,” approxi-

mately 70 of the “Fortune 200,” and a wide range of

chambers of commerce, trade associations, and community

coalitions representing businesses of all sizes.

]

—

Among other functions, the Institute disseminates in-

formation intended to assist employers and employees in

corporate drug-abuse prevention and treatment programs,

and to positively influence the national, state, and local

consideration of drug-abuse prevention issues. The In-

stitute, therefore, is uniquely situated to provide relevant

and helpful information on the nature and dangers of

alcohol and drug abuse, and on the design and implemen-

tation of effective policies and procedures to combat those

problems in the workplace, particularly where such policies

promote the safety and welfare of employees, co-workers,

and the public at large.

The Institute has a significant interest in the questions

presented in this case. By holding that an employer may

be required to return an employee suspected of illicit drug

abuse to a safety-sensitive position after he refused to

submit to a requested drug test, the Court of Appeals

ignored the risk that such an employee could cause or

contribute to an accident, and the potentially catastrophic

consequences. The decision therefore unfairly limits em-

ployers’ ability to provide a safe workplace, and to take

steps to protect life, property, and the environment.

The Institute’s members have a strong interest in ensur-

ing that their drug-free workplace policies cannot be evaded

by employees who refuse to submit to a drug test without

consequence. Mandatory reinstatement of a safety-sensitive

employee legitimately suspected of drug abuse who refuses

to submit to testing—if left undisturbed by this Court—

would provide a “road map” to illicit drug users on the

best strategy to avoid the employment ramifications of

improper and dangerous conduct.

Moreover, such a policy would give drug abusers an

escape hatch from enforcement of company drug-free

workplace policies, would undermine the very basis of

these policies, and—by putting those known or strongly

suspected of being drug abusers back in critically safety-

sensitive jobs—could directly and substantially precipitate

human, economic, and environmental catastrophes.

INTRODUCTION AND SUMMARY

The Institute agrees with the Petitioner that the Third

Circuit’s decision to uphold the arbitrator’s award reinstat-

ing Alan Cash violates the well-established public policy

against allowing drug-impaired employees to work in

safety-sensitive positions. That public policy—grounded

in concerns relating to public, environmental, and work-

place safety—is of overriding importance, and requires

that the Court of Appeals’ decision be reversed.

Petitioner's employee, Mr. Cash, worked as a pump

man on an ocean-going oil tanker, which is a safety-

sensitive position subject to drug testing under both U.S.

Coast Guard and Petitioner’s rules. He refused to submit

to a drug test after an inspection revealed evidence of

marijuana in his room and suitcase. Exxon Shipping Co.

v. Exxon Seamen's Union, 73 F.3d 1287, 1289-90 (3d

Cir. 1996) (Exxon III). Mr. Cash was terminated for

failure to submit to the requested test, but ordered re-

instated by an arbitration panel which, using a “clear and

convincing evidence” standard, found that Petitioner did

not have sufficient cause to require a drug test. /d. at

1290. Petitioner filed an appeal from this award in the

U.S. District Court for the District of New Jersey, which

affirmed and enforced the arbitration ruling. Petitioner

appealed that decision to the United States Court of

Appeals for the Third Circuit, which affirmed the District

Court’s decision.

Significantly, the Court of Appeals agreed with Peti-

tioner that reinstatement of an employee who refuses to

submit to a drug test upon a showing of reasonable cause

violates public policy. /d. at 1295. Nevertheless, the

court refused to overturn the arbitrators’ decision, noting

the conflicting policy in favor of judicial deference to

arbitration decisions. /d. at 1297.

The safety concerns that motivated the widespread

adoption of workplace drug-testing policies, particularly

4

for employees working in safety-sensitive positions in the

petrochemical industry, are the essential foundation for a

broad public policy against reinstating to a safety-sensitive

position any employee who has refused, for whatever

reason, to submit to a drug test. Reinstatement to a regu-

lated, safety-sensitive position destroys public policy by

undermining multiple, compelling safety interests. In ad-

dition, such a conclusion clearly violates public policy by

undercutting every requirement that lawmakers and em-

ployers have adopted to ensure that employees who abuse

drugs or alcohol are not employed in these positions.

Despite this well-defined and strong policy against per-

mitting those under the influence of illegal drugs or alcohol

to engage in safety-sensitive work, the Third Circuit’s

decision encourages employees who believe they might

test “positive” to refuse to submit whenever a “for-cause”

test is requested, thereby defeating the very purpose of

“for cause” testing and subverting its deterrence and de-

tection impacts. For these reasons, the Institute urges this

Court to grant the petition for a writ of certiorari, and to

reverse the decision of the Court of Appeals.

ARGUMENT

I. A WELL-DEFINED AND DOMINANT PUBLIC POL-

ICY DICTATES THAT DRUG- OR ALCOHOL-

ABUSING EMPLOYEES NOT BE PERMITTED TO

WORK IN SAFETY-SENSITIVE POSITIONS.

A. Each branch of the federal government repeatedly

has enunciated a public policy that seeks to prevent

drug- or alcohol-impaired employees from working

in safety-sensitive positions.

A clearly defined and dominant public policy supports

the removal of potentially drug- or alcohol-impaired work-

ers from safety-sensitive positions. This policy has been

expressed explicitly through Presidential actions, federal

statutes, and a large volume of federal regulations.

The policy against employing substance abusers in

Safety-sensitive positions has been incorporated into fed-

5

eral law on several levels. Executive Order 12,564, issued

by President Reagan, mandated that the heads of all

executive agencies of the federal government establish a

drug-free workplace. Congress enacted the Drug-Free

Workplace Act, 41 U.S.C. app. § 701 ef seg. (1994),

which requires all federal contractors to establish a drug-

abuse prevention program including education, counseling,

and penalties for drug use. 41 U.S.C. app. § 702(a)

(1994),

The U.S. Department of Transportation (DoT) and

five operating agencies under its control established man-

datory substance-abuse prevention requirements. The Fed-

eral Aviation Administration (FAA), the U.S. Coast

Guard (USCG), the Federal Railroad Administration

(FRA), the Federal Highway Administration (FHWA),

and the Federal Transit Administration (FTA) promul-

gated detailed regulations in this area, all of which reflect

the fundamental policy judgment that no drug- or alcohol-

impaired employees should work in safety-sensitive posi-

tions in transportation operations.' The strong public

policy behind these DoT regulations was definitively un-

derscored by Congress in its enactment (by wide vote

margins in both the Senate and the House of Representa-

tives) of the Omnibus Transportation Employee Testing

Act of 1991, 49 U.S.C. app. § 2717 (1994).

Outside the transportation sector, the Departments of

Energy (DoE) and Defense (DoD) also have promul-

gated regulations to ensure that safety-sensitive jobs are

only performed by unimpaired individuals. DoE and DoD

contractors must have programs to identify illegal drug

users, including testing of employees in sensitive positions

—that is, positions that pose dangers to public health

1 See 14 C.F.R. Part 121, Appendix I (1994) (FAA); 46 C.F.R.

Part 16 (1994) (USCG); 49 C.F.R. Part 219 (1995) (FRA): 49

C.F.R. Part 382 (1995) (FHWA); 49 C.F.R. Part 658 (1994)

(FTA).

6

and safety. 10 C.F.R. Ch. III, § 707.5(a)(1) (1994),

48 C.F.R. § 252.223-7004(c)(4)(i) (1994).*

There also is substantial precedent in the federal courts

recognizing this public policy. This Court, in Skinner v.

Railway Labor Executives’ Association, 489 U.S. 602

(1989), and National Treasury Employees Union v. Von

Raab, 489 U.S. 656 (1989), confirmed the public policy

against allowing impaired employees to work in safety-

sensitive positions. In Skinner, the Court held that in

light of the great potential harm that drug- or alcohol-

impaired employees may cause in the railroad industry,

railroad employees could be required to undergo drug

and alcohol testing. Similarly, in Von Raab, the Court

held that Customs employees who carry firearms could be

subject to mandatory drug testing because of the dangers

which substance-abuse impairment would pose for agents

in their positions.

The Fifth, Ninth, First, and Third Circuit Courts of

Appeals have considered whether public policy prevents

the reinstatement of drug- or alcohol-abusing employees to

safety-sensitive positions. Each of them has concluded

that public policy strongly militates against such results.

For example, the Fifth Circuit has held that an other-

wise valid arbitrator’s award that ordered reinstatement of

a drug-abusing employee in a safety-sensitive position,

conditioned on passing a drug test, violated public policy.

Gulf Coast Industrial Workers Union v. Exxon Co. USA,

991 F.2d 244, 249 (Sth Cir. 1993), cert. denied.

US. » 114 S. Ct. 441 (1993). The court noted,

“[t}]here are countless statutes, regulations, company guide-

lines, and judicial decisions that pronounce the emphatic

national desire to eradicate illicit drugs from the work-

place.” 7d.

* See also 48 C.F.R. Part 1852 (1994) (National Aeronautics and

Space Administration Drug Testing requirements for contractors) ;

10 C.F.R. Part 26 (1994) (Nuclear Regulatory Commission contrac-

tors testing requirements for nuclear plant employees.)

7

More recently, the Fifth Circuit broadened the scope

of its decision to recognize the preemptive effect of the

public policy against allowing drug- or alcohol-impaired

employees to occupy safety-sensitive positions. It ruled

that an arbitrator’s award of back pay or reinstatement of

an employee who tested “positive” for cocaine while em-

ployed in a safety-sensitive position, even where reinstate-

ment would involve placement in a non-safety-sensitive

job, also undermines public policy. Exxon Corp. v.

Baton Rouge Oil and Chemical Workers Union, 77 F.3d

850 (Sth Cir. 1996).*

Of course, as Petitioner notes, the Third Circuit also

has specifically recognized a dominant public policy for-

bidding the reinstatement of employees who have tested

“positive” to safety-sensitive positions. See Exxon Ship-

ping Co. v. Exxon Seamen’s Union, 11 F.3d 1189 (3d

Cir. 1993) (Exxon II); Exxon Shipping Co. v. Exxon

Seamen’s Union, 993 F.2d 357 (3d Cir. 1993) (Exxon

I). Nonetheless, in the decision at issue, the court

placed primary emphasis on the issue of how the em-

ployee, Alan Cash, came to be asked to submit to a test,

rather than the fundamental value and objectives of the

testing policy itself.

In summary, every court which has considered the issue

has agreed that an arbitrator’s discretion on issues involv-

ing employee drug or alcohol abuse is circumscribed by

the public policy against permitting safety-sensitive em-

ployees to engage in illicit drug and alcohol use.

B. The states have recognized that public policy for-

bids employment of drug- or alcohol-abusing em-

ployees in safety-sensitive positions.

A vast majority of the states also have recognized this

public policy in one form or another. State legislatures

3 See also, United Food & Commercial Workers v. Foster Poultry

Farms, 74 F.3d 169 (9th Cir. 1995); Delta Air Lines v. Air Line

Pilots Ass’n, 861 F.2d 665 (1st Cir. 1988), cert. denied, 493 U.S.

871 (1989).

8

have enacted laws on drug-free workplaces, limitations on

benefits, and workplace drug testing.

State unemployment compensation and workers’ com-

pensation laws also evidence this well-defined and dom-

inant public policy against allowing impaired employees

in the workplace. More than 20 unemployment com-

pensation statutes explicitly deny unemployment benefits

to workers who were dismissed due to alcohol or drug use.*

In the absence of an explicit statutory provision, unem-

ployment commissions in many other states faced with a

worker dismissed for drug or alcohol use also have denied

claims for unemployment benefits.”

Similarly, 39 states have enacted explicit statutory lim-

itations on the receipt of workers’ compensation benefits

by an employee who is injured due to drug or alcohol

use.® In the absence of statutory provisions for automatic

denial of benefits, state courts also have denied intoxi-

4 See, e.g., ARIZ. REV. STAT. ANN. §§ 23-619.01 (1993) and 23-775

(1993) (benefits are denied to an employee who is discharged for

willful misconduct which includes failure to pass or refusal to take

a drug or alcohol test); ARK. CODE ANN. § 11-10-514(b) (Michie

1994) (benefits denied to employee discharged for reporting to

work under the influence of alcohol or controlled substances) ; FLA.

STAT. §§ 443.101-2 (West 1995) (benefits denied if discharge due

to drug use; a “positive” drug test creates a rebuttable presumption

of drug use); N.Y. LAB. LAw § 592 (McKinney 1993) (disqualifica-

tion from benefits may result if person in safety-sensitive position

tests “positive” for drug or alcohol use); OKLA. STAT. tit. 40,

§ 2-406A (1994) (“positive” test or refusal to test under program

in compliance with state law disqualifies employee from benefits).

5 See, e.g., Dolan v. Svitak, 527 N.W. 2d 621 (Neb. 1995);

Warren v. Employment Security Department, 724 P.2d 227 (N.M.

1986); Clevenger v. Employment Security Department, 770 P.2d

866 (Nev. 1989); Farm Fresh Dairy v. Blackburn, 841 P.2d 1150

(Okla. 1992).

6 See, e.g., ME. REV. STAT. ANN. tit. 39-A, § 202 (West 1993)

(no benefits if intoxicated when injury occurred, unless employer

knew employee was intoxicated at the time of the injury or knew

the employee had a habit of coming to work intoxicated); N.Y.

WorK. Comp. Law §10 (McKinney 1998) (benefits denied if

St aoe

LMA LBL AP a mm

ne oe

9

cated employees these benefits.’ While these statutes and

rulings vary by state, the policy is manifestly clear in

each case: employees should not be permitted to recover

compensation when they intentionally endanger them-

selves and others by using drugs and alcohol.

Il. PROHIBITING REINSTATEMENT OF SAFETY-

SENSITIVE EMPLOYEES WHO REFUSE DRUG

TESTS IS A NECESSARY COROLLARY OF THE

PUBLIC POLICY WHICH GIVES PRIORITY TO

PUBLIC, WORKPLACE, AND ENVIRONMENTAL

SAFETY.

A. Reinstatement violates public policy because it en-

courages employees to refuse drug or alcohol tests

and undermines the ability of drug-testing programs

to identify drug abusers.

If a worker is allowed to refuse a drug test without

facing sanctions at least as severe as those for a “positive”

drug test, all employees who would test “positive” for

drugs simply will refuse the test and accept a lesser

sanction. This result effectively would condone drug use,

and thereby endanger the employee, his or her co-workers,

the public, and the environment. A lesser sanction for a

refusal-to-test destroys the effectiveness of drug-testing

programs. The federai and state governments, and other

courts, have recognized this problem, and treat a “refusal-

to-test” in a similar fashion to a “positive” test result.

The federal agencies recognize the futility of a drug-

abuse prevention program that does not at least provide

injury is caused solely by use of controlled substances) ; Pa. Stat.

ANN. tit. 77 § 431 (Supp. 1995) (benefits denied if injury caused

by intoxication or use of illegal drugs) ; R.I. Gen. Laws § 28-33-2

(1986) (benefits denied if injury caused by intoxication or use

of illegal drugs).

* See, e.g., Banks v. Dep't of Educ., 462 S.W.2d 428 (Ky. 1971) ;

Nekoosa-Edwards Paper Co. v. Indus. Com., 141 N.W. 1013 (Wis.

1913). Both cases predate current statutes disqualifying intoxicated

employees from collecting benefits.

10

identical sanctions for a “positive” test result and a refusal-

to-test. Consequently, in virtually every instance, the

federal government has equated a refusal-to-test with a

“positive” test result for determining of sanctions.

All the DoT regulations equate a refusal-to-test with

a “positive” test result. For example, the FAA regula-

tions provide that no person can be employed in a safety-

sensitive position who has failed or refused to submit to

a drug test, 14 C.F.R. Ch. I, § 121.455(c) (1994),

unless it is subsequently determined that he or she is fit

for duty. 14 C.F.R. Ch. I, § 121.455(d) (1994). Sim-

ilarly, the USCG regulations provide that an individual

holding a license, certificate of registry, or merchant mar-

iner’s document who refuses to submit to a test under

the regulations will be subject to suspension and revoca-

tion proceedings. 46 C.F.R. § 4.06-5(c) (1994). Addi-

tionally, the concern that drug-using individuals are the

most likely to refuse a test led the USCG to provide that

all individuals, including the grievant in this case, who

refuse to be tested must be removed from any duties

which directly affect the safety of a vessel’s navigation or

operations. 46 C.F.R. § 4.06-5(c) (1994). See also 49

C.F.R. §§ 219.603(b), 219.213, 219.505, 219.605(e)

(1994) (FRA sanctions for refusal to provide a sample);

49 C.F.R. §§391.117(a) to 391.117(b) (1994)

(FHWA disqualifications); 49 C.F.R. § 653.9(a) (1) (iii)

(1994) (FTA regulations); 10 C.F.R. Ch. I, § 26.27(c)

(1994) (NRC requirements).

Many states also have recognized the necessity of equat-

ing a refusal-to-test with a “positive” test result. Of the

nine states whose laws specifically address the subject,

three explicitly equate a refusal-to-test with a “positive”

test result," and six allow the employer to determine the

8 Miss. CODE ANN. §§ 71-7-1 to -31 (1993) (refusal-to-test for pre-

employment test is valid basis for refusal to hire; posted policy must

state consequences of refusal-to-test) ; OKLA. STAT. tit. 40, §§ 551-

565 (1994) (a confirmed “positive” test or a refusal-to-test is valid

11

sanctions for a refusal-to-test.”

Several state unemployment compensation laws also

reflect the public policy against permitting a person who

has refused a drug test to obtain benefits through the

Statutory mechanism."” In states without an express statu-

tory provision, this policy is reflected in case law through

the denial of unemployment benefits because of an appli-

cant’s refusal to submit to a drug test. The courts and

unemployment compensation commissions routinely deny

benefits for terminations triggered by employee refusals

to test, holding that such refusals constitute “gross” or

“willful” misconduct sufficient to justify disqualification

from eligibility. See, e.g., Farm Fresh Dairy v. Blackburn,

841 P.2d 1150 (Okla. 1992) (collecting cases). Sim-

ilarly, several state workers’ compensation laws evidence

the public policy against allowing a worker who refuses

a drug test to receive less severe sanctions than a worker

who receives a “positive” test result.”

basis for refusal to hire; posted policy must state consequences of

refusal-to-test) ; UTAH CODE ANN. §§ 34-38-1 to -15 (1993) (re-

fusal to submit to test, like a “positive” test result, allows the

employer to suspend, discharge, or discipline the employee, or deny

employment to a job applicant).

® 1995 Ala. Acts 535 (employer must give notice of consequences

of refusal-to-test) ; FLA. STAT. ANN. § 627.0915 (West 1993) (em-

ployer must post consequences of refusal-to-test) ; Ga. CODE ANN.

§§ 34-9-410-420 (Michie 1993) (must post consequences of “posi-

tive” test result or refusal-to-test) ; ME. REv. STAT. ANN. tit. 26

§§ 618-690 (West 1993) (employer must advise employees of conse-

quences of refusal) ; MINN. STAT. §§ 181.950-957 (1993) (employer

must advise employees of consequences of refusal); 1996 Wash.

Legis. Serv. 127 (West) (effective June 6, 1996) (employer may

terminate employees for refusing a test).

10 See, e.g., CONN. GEN. STAT. § 31-236 (1992) (benefits denied

to an employee who is discharged for violating employer drug

policy if policy is established in accordance with Connecticut law) ;

La. Rev. STAT. ANN. §§ 23:1601 (West 1992) (refusal-to-test is

considered grounds for denial of compensation).

! See e.g., ALA. CODE § 25-5-51 (1993) (injured employee who

refuses test is denied benefits); FLA. STAT. ANN. § 440.101 (West

12

The many decisions issued by federal and state courts

in cases alleging wrongful discharge and similar common-

law torts also highlight the strong public policy against

reinstatement of employees who refuse drug tests. See,

e.g., Baggs v. Eagle-Picher Industries, Inc., 957 F.2d 268

(6th Cir. 1992), cert. denied, 506 U.S. 975 (1992) (no

cause of action for discharge following refusal-to-test) ;

Monroe v. Consolidated Freightways, Inc., 654 F. Supp.

661 (E.D. Mo. 1987) (discharge for refusal upheld);

Luedtke v. Nabors Alaska Drilling, 834 P.2d 1220

(Alaska 1992) (employees may submit to test or refuse

and resign); Folmsbee v. Tech Tool Grinding and Supply,

Inc., 630 N.E.2d 586 (Mass. 1994) (discharge for re-

fusal-to-test upheld); Gilmore v. Enogex, Inc., 878 P.2d

360 (Okla. 1994) (interest in drug-free workplace justi-

fies termination for failure to test).

B. Employers with strong and effective drug-testing

programs properly treat a “refusal to test” at least

as severely as a “positive” test result.

For a drug-testing program to be effective, there have

to be severe sanctions which employees know will result

if they violate the policy. A drug-testing program in

which an employee can avoid the consequences of a

“positive” test result by refusing a drug test is essentially

worthless. Such a policy would destroy the effectiveness

of workplace drug-testing programs. Detection abilities

are irrelevant when an employee can refuse a test. Deter-

rence—including the fear of being caught—is destroyed

when employees know they can avoid the consequences

of a “positive” test by simply refusing to submit.

A recent survey of the Institute’s members demonstrated

that American employers have adopted policies that

equate a “refusal-to-test” with a “positive” test result—

or as insubordination. Of 51 Institute members who re-

1993) (refusal to test leads to presumption that employee impaired

and ineligible for medical and indemnity benefits).

13

sponded to the survey question “Does your company

equate an employee’s or a job applicant’s refusal to be

drug tested with a confirmed drug-test “positive” for ad-

verse employment action purposes?,” 45 answered “yes.”

The remaining six respondents stated that a drug-test

refusal is treated more severely than a “positive” drug-test

result. In the words of one member, “If there are no

consequences to a refusal to be tested, then there is no

program to keep substance abusers out of the work-

place.” ”

Thus, the experience of p:ivate sector employers con-

firms the judgment of regulators that a comprehensive

drug-testing program which equates a refusal-to-test with

a “positive” test result is a necessary and efficient means

of preventing harmful accidents. Each successful work-

place program confirms that drug and alcohol testing help

achieve the public policy goals expressed through the

numerous federal and state expressions of public policy.

To permit refusals-to-test to not trigger the same ad-

verse employment action as a “positive” test result is to

render the drug-testing program meaningless—no one who

could test “positive” would agree to a test and the “posi-

tive” rate likely would be 0.0 percent. The effectiveness

of drug testing and workplace substance-abuse programs

should not be crippled by permitting a refusal-to-test to

carry no sanction or a lighter sanction than a “positive”

test result.

12 Institute for A Drug-Free Workplace. “Member Survey: Work-

place Policies Regarding a Refusal-to-Test.” Washington, D.C.

(May 1996).

14

C. Reinstatement of employees who refuse drug or

alcohol tests violates public policy because it dras-

tically interferes with employer efforts to avoid the

placement in hazardous positions of employees who

abuse illegal drugs or alcohol.

Employers with safety-sensitive operations hire from a

population in which nearly three-quarters of America’s

illicit drug users are employed. The U.S. Department of

Health and Human Services estimates that one out of

every four Americans is directly affected by the alcohol or

drug dependency of a family member, friend, or co-

worker.”

Companies with employees who perform safety-sensitive

tasks must be able to decrease the likelihood of accidents

which have substantial—and sometimes tragic—human,

economic, and environmental costs. In addition, these

companies have a statutory duty to ensure safe and healthy

workplaces for all of their employees. 29 U.S.C.A. § 654

(a)(1) (1985). Furthermore, employers are liable in

tort to individuals who suffer personal injury and/or prop-

erty damage as a result of an accident. Where catastrophic

events occur as the result of the drug or alcohol use of

employees in safety-sersitive positions, the financial conse-

quences can be staggering. Thus, companies clearly need

to be able to reduce the likelihood of accidents, not only

because of the severe economic burden that the company

would face in the wake of such an accident, but also

because of the human suffering and harm that would be-

fall society.

Drug and alcohol use substantially impact workplace

safety. For example, drug-using employees were found to

be 3.6 times more likely to be involved in a workplace

accident than are employees who do not use drugs.

Thomas E. Backer, Strategic Planning for Workplace

18 Substance Abuse and Mental Health Services Administration,

U.S. Department of Health and Human Services, 1994 National

Household Survey on Drug Abuse (September 1995).

ee,

per ee) Bee

15

Drug-Abuse Problems, National Institute on Drug Abuse,

at 4 (1987). In addition, a Utah Power and Light study

estimated that employees testing “positive” on preemploy-

ment drug tests were five times more likely to be in-

volved in a workplace accident than those who tested

“negative.” ™

Given the magnitude of the nation’s drug- and alcohol-

abuse problems, it would be naive to assume that em-

ployees in safety-sensitive positions do not abuse drugs

or alcohol. In fact, the latest drug-test “positive” figures

show otherwise: 6.7 percent of the 3.75 million employees

and applicants who were tested for drugs at SmithKline

Beecham laboratories in 1995 tested “positive.” Smith-

Kline Beecham, Drug Testing Index (March 1, 1996).

Of more direct relevance and significance, out of more

than 784,000 drug tests performed by that one commer-

cial laboratory on safety-sensitive transportation workers,

3.5 percent tested “positive” for illegal drug use. That

percentage indicates that at least 27,740 individuals in the

transportation industry in safety-sensitive jobs who knew

they were subject to periodic testing still tested “positive”

for illicit drug use. Id.

Furthermore, in a recent national survey of employees,

35 percent of full-time employees surveyed by the Gallup

Organization said they had “personally seen or heard of”

illicit drug use on the job, and 43 percent said that drug

use in their workplace “seriously affects their ability to

get the job done.” Survey of 1,006 Full-Time Employees,

Aged 18 and Older, Working Outside of the Home, Gal-

lup Organization, Princeton, New Jersey, (November

1995). In addition, 59 percent agreed that alcohol abuse

is a major workplace problem. /d.

14 Dennis Crouch, M. Birky, et al., National Institute on Drug

Abuse, A Critical Evaluation of the Utah Power and Light Com-

pany’s Substance-Abuse Management Program: Absenteeism, Acci-

dents, and Costs, Drugs in the Workplace: Research and Evaluation

Data, at 169-93 (1989).

16

The devastating effecis of alcohol- and drug-impaired

employees are evident in several studies. Between 1975

and 1986. more than 50 train accidents were directly

attributed to drug or alcohol abuse. These accidents

resulted in 37 fatalities, 80 injuries, and more than $34

million in property damage. Battling the Enemy Within,

Time, March 17, 1986, at 52. Other studies have docu-

mented declines in workplace accidents after substance-

abuse problems were decreased or eliminated through

workplace drug testing. For example, a survey of con-

struction industry companies revealed that where sub-

stance-abuse testing was implemented, workplace accidents

declined by 34 percent. National Association of Plumbing-

Heating-Cooling Contractors, The C onstruction Industry

Survey on Substance Abuse (April 1992).

Studies of workers who test “positive” for drug use

establish that the costs of workplace substance abuse can

be cut following implementation of substance-abuse detec-

tion progra ns. For example, in a retrospective study, the

U.S. Post Office estimated that it could have achieved net

savings of 105 million dollars within five years by not

hiring job applicants who tested “positive” on pre-employ-

ment drug tests in one year alone. United States Postal

Service, Personnel Research & Development Branch, Office

of Selection and F valuation, Preemployment Drug Testing:

Associations with EAP, Disciplinary, and Medical Claims

information (July 1992).

Legislators, regulators, and employers have relied on

this information and similar data in formulating policies

and strategies to protect the public from those well-docu-

mented harms. If arbitrators and courts effectively man-

date that an employee's refusal to submit to drug testing

is sanctioned less severely then a “positive” drug-test

result, they will destroy the underlying purposes of these

laws, regulations, and policies, and place the public at risk.

17

D. Reinstatement of a safety-sensitive employee who

refused to test sends the wrong signal to courts,

arbitrators, employers, and employees regarding a

compelling public policy concern.

Reinstatement of Mr. Cash would subvert public policy,

and send a jarring signal to employers that work strenu-

ously to achieve the goal of a drug-free workplace, par-

ticularly in safety-sensitive environments. Rather than

reinforcing the clear and dominant policy direction of

government at all levels, the Third Circuit’s decision—if

undisturbed—will prevent employers from carrying out

their legal duties, and securing all potentially affected

parties and interests from potentially catastrophic harm.

It will condone employee misconduct—refusing to test—

and undermine a highly legitimate, widely accepted, and

absolutely necessary tool in achieving a crucial social goal.

As the Fifth Circuit recognized in Exxon Corp. v. Baton

Rouge Oil and Chemical Workers’ Union, supra, the com-

pelling public policy against drug use in safety-sensitive

positions can be weakened by an arbitrator's reinstatement

or back pay order. For that reason, the court concluded

that this precise public policy takes compelling precedence

over the discretion that the arbitrator ordinarily would

have to interpret the collective bargaining agreement. In

contrast, the ruling of the Third Circuit in this proceeding

improperly subordinates this critical interest, and would

serve as an obstacle to the eradication of illicit drug use

in safety-sensitive positions. It would improperly insulate

employee action at odds with the goals and methodology

embraced by the government and private employers, and

otherwise tend to perpetuate the very harm which public

policy seeks to avoid.

The net effect of the Third Circuit's decision, if widely

applied, would be to put and keep more drug abusers in

safety-sensitive jobs. How can that possibly be a good

thing? Our court system should enthusiastically embrace

the fundamental concept that drug abusers should not be

re

18

in safety-sensitive jobs. The courts should—as they gener-

ally have—send the right signal to America by not forcing

employers to hire or retain those who could do the most

harm in those positions.”

Workplace drug and alcohol abuse clearly presents

unique problems, not only for employers but for society

as well. Drug and alcohol abuse repeatedly has been

shown to have disastrously harmful effects in the work-

place and in the community. Employer practices through-

out the country have proven that comprehensive drug-

testing programs with known, uniform consequences are

the most effective means of preventing the potential harm

that employee drug abuse can cause. The effectiveness of

drug testing, however, is severely compromised -when

refusals to submit to testing are sanctioned less severely

than are “positive” test results.

Clear tenets of public policy argue against allowing

impaired employees and employees who refuse a drug test

to perform safety-sensitive jobs. The Institute urges the

Court to recognize the commonly understood and accepted

components of a drug-testing program, and to allow em-

ployers to better protect their employees, the public, the

environment, and their business interests. The Court can

accomplish this by preserving employers’ rights to have

meaningful and effective drug-testing programs, and to

continue—as is the practice of virtually all employers—

to consider “refusals-to-test” the equivalent of “positive”

drug tests.

15 See, e.g., Newsday, Inc. v. Long Island Typographical Union,

915 F.2d 840 (2d Cir. 1990), cert. denied, 499 U.S. 922 (1991)

(arbitrator’s reinstatement of employee terminated for sexual

harassment vacated due to conflict with and adverse effect upon

public policy interests).

eS A Ati, yon see

Pt oo it en lr Nei

The Institute for a Drug-Free Workplace respectfully

urges the Court to grant the writ of certiorari to review

the judgment below, to reverse the rulings that would

require the reinstatement of Mr. Cash despite his mis-

conduct and violation of company policy—specifically, his

refusal to submit to a drug test—and to recognize that

his mandated reinstatement would violate public policy.

May 10, 1996

CONCLUSION

19

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

NANCY N, DELOGU

LITTLER, MENDELSON, FASTIFF,

TIcHY & MATHIASON, P.C.,

1225 I Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 842-8400

Counsel for Amicus Curiae,

The Institute for a

Drug-Free Workplace