# Amicus Curiae Brief — Eastern Associated Coal Corp. v. Mine Workers

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0594%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 57

## Text

MOTION FILED

MAY’ 4 2000 @
No. 99-1038

In The

Supreme Court of the United States
October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
Vv.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17;
LOCAL 1503, UNITED MINE WORKERS OF AMERICA,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE -
BRIEF AND BRIEF OF AMICUS CURIAE,
_ THE INSTITUTE FOR A DRUG-FREE WORKPLACE,
IN SUPPORT OF THE PETITIONER

PETER A. SUSSER

Counsel of Record
MARK A. DE BERNARDO
KATHERINE A. GOETZL
LITTLER MENDELSON, 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

No. 99-1038

In The

Supreme Court of the United States
October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
V.

UNITED MINE WORKERS OF AMERICA, DISTRICT av
LOCAL 1503, UNITED MINE WORKERS OF AMERICA,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit

MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF

Pursuant to Rule 37.3 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, Eastern Associated Coal
Corporation.” In support of its Motion, the Institute states:

The Institute is a non-profit coalition of private
businesses and business organizations dedicated to

* Prior to filing this Motion, the Institute sought the consent of
the parties to the filing of its brief, as required by Rule 37.3 of this
Court. The Petitioner consented to the Institute’s request. The
Institute was unable to contact the Respondents, necessitating this
Motion.

promoting and protecting the interests of employers and
employees in effective and responsible drug-abuse
prevention programs.

In this regard, the Institute disseminates information to
assist in the development of workplace drug-abuse
prevention and treatment programs, and participates in
various forums — including legal, regulatory, and legislative
forums — on the development of the law on workplace
substance-abuse prevention throughout the United States.
The Institute has developed an enormous collection of
resources on current laws, regulations, and workplace
policies and practices regarding substance-abuse prevention.
In addition, the Institute has extensive information on the
successes and failures of workplace substance-abuse
programs and what measures have proven most 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
workplace drug-testing programs. Its members have
implemented such programs 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 can
provide important input on the critical policy issues involved
in this case which the Court should consider.

WHEREFORE, the Institute for a Drug-Free Workplace
respectfully requests that the Court grant its motion and
permit it to file the accompanying brief as an amicus curiae
in support of the Petitioner.

May 4, 2000

Respectfully submitted,

PETER A. SUSSER

Counsel of Record
MARK A. DE BERNARDO
KATHERINE A. GOETZL
LITTLER MENDELSON, 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

TABLE OF CONTENTS

TABLE OO] ALS ERR CMG ccsnsscsccsnscsinsnhtintetnicvabinapiclendaiins ill
EU Eee eC Ts ID oases seincssancaamisisenesncamsginnaiis l
INTRODUCTION AND SUMMARY ..........ccccecssssseseeseeeees 3
PRETATION, ssiissmssissnssiomnoapasnoniaianmiaamaaaimaia 5

I. PUBLIC POLICY DICTATES THAT DRUG- OR
ALCOHOL-ABUSING EMPLOYEES NOT BE
PERMITTED TO WORK IN SAFETY-SENSITIVE
PUIEEE BIRO ncsantsinixananndniniinssenasianinnanicienmedimnnniiania 5

A. The U.S. Supreme Court Has Recognized the
Public Policy Against Employing Drug or Alcohol
Abusers in Safety-Sensitive Positions ...............0.+. 6

B. The Executive and Legislative Branches of the
Federal Government Have Recognized the Public
Policy Against Employing Drug or Alcohol
Abusers in Safety-Sensitive Positions ..............00++. 6

C. State Legislatures and Courts Have Recognized
the Public Policy Against Employing Drug or
Alcohol Abusers in Safety-Sensitive Positions...... 8

II. PROHIBITING REINSTATEMENT OF SAFETY-
SENSITIVE EMPLOYEES WHO FAIL DRUG
TESTS IS A LOGICAL AND NECESSARY
APPLICATION OF THE PUBLIC POLICY WHICH
GIVES PRIORITY TO WORKPLACE, PUBLIC,
AND ENVIRONMENTAL SAFETY ............0000000 10

il

A. Reinstatement of Employees Who Fail Drug or
Alcohol Tests Violates an Established Public
Policy Because It Drastically Undermines
Employer Efforts to Prevent the Placement of
Substance Abusers in Hazardous Positions........ 10

B. Employers with Effective Substance-Abuse
Prevention Programs Terminate Employees Who
Twice Test “Positive” for Illicit Drug Use......... 15

C.Alcoholism and Drug Addiction Are Chronic
Conditions for Which the Risk of Relapse Never
DDNIIE .ocrsscnininiiiieuaiiaaainnaiaaaanns 16

D.Reinstatement of a Safety-Sensitive Employee Who
Failed a Drug Test Sends the Wrong Message to
Courts, Arbitrators, Employers, and Employees
Regarding a Compelling Public Policy.............. 18

Ill. REVERSAL OF THE FOURTH CIRCUIT’S
DECISION IS NECESSARY TO PREVENT
FUTURE DRUG- AND ALCOHOL-RELATED
WORKPLACE TRACSHIPEII .ncssonccsinssescintsanchocntion 20

COIN LLISIIIN, oxeosi, : SRO DDRII PORN eOREZE ete OMie ro EN 10
STATE CASES

Clevenger v. Employment Sec. Dep't, 770 P.2d 866
ERPS, Sr NING ssicin ciclo eaecclsaling ite cia talento oaaaaaess 9

iV

Parro v. Industrial Comm'n of Illinois, 657 N.E.2d 882

eas ear acs icine chsonshioeiticiee tes nada eddemaumaniciai ohana kasi sacsabiadich 9
Risch v. State, 879 P.2d 358 (Alaska 1994) oo... eee eeeeeeee 9
Warren v. Employment Sec. Dep't, 724 P.2d 227

EE: SID a pista tiavicaicslephacbslen atin setoindlindickiannccapeiiapbaniaceiaas 9
FEDERAL STATUTES
ZD USAF OSS CAT) CIGD) nn cccssnpeciesenesssccossecssssnensosans 11
BE UTR A.. Se ei ipccncassensnsniininensnanndhtabinntenksbaniunic 7
OF Oh. Bh ee FIED wiicviiccasialsintcnccndibeacnentcebteapmenaianhen 7
STATE STATUTES
ALA. CODE § 25-4-78 (Supp. 1998)...............scsscssssscsrecsseeees 8
PAL. COI SRT CEPA) sicarsctntinscssisenenanasecasinaseninnnianciah 9
ARIZ. REV. STAT. § 23-619.01 (1993)..............cccccssssssrcccesees 8
CAL. LAB. CODE § 3600 (West 1989 & Supp. 1999)............ 9
CAL. UNEMP. INS. CODE § 1256.5 (West Supp. 1999).......... 8
FLA. STAT. ANN. § 440.09 (West 1993)... ceeeeesesereeeseeee 9
FLA. STAT. ANN. § 443.101 (West 1997 & Supp. 1999)...... 8
GA. CODE ANN. § 34-8-194 (Michie 1998)............cceeeeeeeees 8
CEA. COG AMIE. © SOIREE CE IR visncesccinsncscsasssscnedannecnnanseine 9
LA. REV. STAT. ANN. § 23:1081 (West 1998) 0... eee 9
LA. REV. STAT. ANN. § 23:1601(10) (West Supp. 1999) ..... 8
Miss. CODE ADGN. 6 713-7 C1DFB) ncseccvcccssccesascccencasanessevsnces 9
TEX. LAB. CODE ANN. §§ 406.032 & 401.013 (West 1996). 9
VA. CODE ANN. § 60.2-618(2)(b) (Michie 1998).............0... 8
VA. CODE ANN. § 65.2-306 (Michie 1995)............eeceseeeeeees 9
Pe hs SE re a ies neehticnsclairsrcnasnnncinnienin 8
W.. VA. CODE § 23-6-2 (Step. 1996) nnn... scrcosssnsssscccssasvncsesnes 9
FEDERAL REGULATIONS

OG ic Ee FT eh ecsi i sccnnininnossnannnnhannsbiandiianintanzneiien 8

er is BN I IIE isstsesnsnnccicticcsosniicisneaicsidananeynenmennensannn 8
14 C.F.R. Part 121, Appendices I and J (2000)...........000000. 7
SB CF. FORE ZOE oko Fe CII ove riccncsaisssescccsanssnenaccnenes 8
A oar ae IE Se CI csi nanicncccsdnnansancinisinccastiannnasgutancea 8
cs Ie IE nancticaanhicibisivnciechatiniannincincicobinniiannaaicen 7
Ro I siiica seh tnntnnicturitneennnssenticsiniitsaiennisianh 7
A ce I ee ih ties sadininkaees isanenintenncinesicianli 7
MD CPR. Patan GSS wl GO4 (1G) san ssnssinscssssnecsccssenccncesses 7
ee Se a hicnintin cise cccetessnsctncnsonciaeitnnnsnnsinenianseninionncir 6
OTHER AUTHORITIES
A. Beck et al., Cognitive Therapy of Substance Abuse
CETTE isitsicnnsictieocriihiuhsechlescinscnisatiihscnteeliheoslenianniniansiniapiiction 17

Alan Finder, JRT Driver Charged in 5 Deaths; Crash Shuts
Line and Ties Up City, N.Y. Times, Aug. 29, 1991, at Al

PPS AS SDN A RTM TEST Ne PON Oh 7 AR OE ETE aE NT TIE 2 22
David L. Durbin, Alcohol Consumption and Workplace
Accidents, NCCI Digest, Dec. 1991, at 39 oe 12

Dennis J. Crouch, et al., A Critical Evaluation of the Utah
Power and Light Company's Substance Abuse
Management Program: Absenteeism, Accidents, and
Costs, Drugs in the Workplace: Research and Evaluation
Data, National Institute on Drug Abuse, at 169-93 (1989)
siccnihciiecasielaticblicccip ehisanscelletocbieienindacecgiaiietiisanibeth 12, 14

Dennis J. Crouch, et al., Prevalence of Drugs and Alcohol in
Fatally Injured Truck Drivers, 38 J. Forensic Sci. 1342

George Vaillant, M.D., A Long-Term Follow-Up of Male
Alcohol Abuse, Archives of General Psychology, Volume
ee , iiiiclinsnseeiaisnicistsesnhndinbiniieeniainnadianineidniinn 16, 18

Glenna Kay Twing, Working High: When Employees Take
Hits, So Do Profits, Journal of Property Management,
UU, TP A ss cdelinliananlnianil 12

Institute for a Drug-Free Workplace. “Member Survey:
Corporate Drug and Alcohol Policies and Programs.”
I Ts CIO icicsnennitaccceresivesiintivtnsaanconisoisniinlaamen’ 15

vi

Institute for a Drug-Free Workplace. “Oil and Chemical
Industries Survey of Corporate Substance-Abuse
Prevention Programs and Policies."" Washington, D.C.
CREPE tdi tininisdiorcintereddieacemmeindammninoamaaie iciaieesaeen 15

J. M. Polich et al., Stability and Change in Drinking Patterns,
The Course of Alcoholism: Four Years After Treatment
Fe EI TD iknxnsessahecuiiestentaintinhipianvcidbamilnsdibassboenininls 16

John Sheridan & Howard Winkler, An Evaluation of Drug
Testing in the Workplace, Drugs in the Workplace:
Research and Evaluation Data, National Institute on Drug

Py eT Cr ii ihtritisisistabnasinininciananeineine i4
Kristen Delguzzi, Driver Fired Twice For Drug Use, New
Orleans Times Picayune, May 14, 1999, at Al .............. 21
Lyndsey Layton and Don Phillips, Drug Use Cited in Crash
of BWI Train, Wash. Post, Feb. 24, 2000, at B1............. 21
Matthew Mosk, Driver in BWI Train Crash Had Prior Rail
Accidents, Wash. Post, Feb. 25, 2000, at BI... 21
Maxine Bernstein, Trucker in Wreck Had Drugs in System,
The Oregomaan, Apr. 30, T9SG, Ot 5 ..ccccscscessscssseesssssscenss 21

M. Dusoe, The Use of Self-Efficacy Training in the
Treatment of Relapse-Prone Individuals, EAPA
NIN, ES GI Taree a sinis nce sccisosacninsnobisiinsadanehaniiiin 17

National Association of Plumbing-Heating-Cooling
Contractors, The Construction Industry Survey on
SOMA AMES CATE TI GE Yai viccassscsncenscasasssspssssnsensions 14

Occupational Health Programs React 4s Some Employees
Decide Drug Testing Doesn't Work, Occupational Health
Management, Mar. 1994, at 33 .....:csccccscssssecessscssovenssceses 12

Office of Applied Studies, Substance Abuse and Mental
Health Services Administration, Services Research

CE FTG iiisi ict ncn esinsiicessidcsnetitiainninasiidatintn 16
Reginald Stuart, Drug Trace Found in 2 Rail Workers After
Fatal Crash, N.Y. Times, Jan. 15, 1987, at Al......0...... 22

R.L. Rogers & C.S. McMillan, Relapse Traps: How to Avoid
the 12 Most Common Pitfalls In Recovery (Bantam Books
SPE P evisianiantadsinntthiaiisahacaniasisdgeaniaddiicaged baudetadnaineNaiiaciaiadaate 17

Vii

SmithKline Beecham, Drug Testing Index (Mar. 16, 1999)
siadayindcnae ot Mea dshjenckcclanicae aia dacieisunnietbadeahaea aanaenesabantiibcipeaalabsaeai 13
Substance Abuse and Mental Health Services
Administration, U.S. Department of Health and Human
Services, /998 National Household Survey on Drug Abuse
CARR, SI ep cisiiasa sasntixcihihinsceialatnsiseiaenistnisnbeléetbtashinatasens 11
Survey of 1,006 Full-Time Employees, Aged 18 and Older,
Working Outside of the Home, conducted for the Institute
for a Drug-Free Workplace by the Gallup Organization,
Princeton, New Jersey (1995) ..........ccrrsrcscrssssscssessceeses 13
Thomas E. Backer, Strategic Planning for Workplace Drug-
Abuse Problems, National Institute on Drug Abuse, at 4

CRIED scceniicasinsionessnecpsicdepsntinninisiabeededianneiisiakdesisennabensuaniden 12
“Traditional Drug Programs Face Up to _ Chronic
Recidivism,” Wash. Post (Aug. 20, 1990). .......::ccceseeeee 18

U.S. Department of Health and Human Services, National
Drug Survey Results Released with New Youth Public
Education Materials (Sept. 12, 1995) ......cccccsceseseeeeceeees 11

United States Postal Service, Personnel Research &
Development Branch, Office of Selection and Evaluation,
Preemployment Drug Testing: Associations with EAP,
Disciplinary, and Medical Claims Information (July 1992)
isis aeons beaplshcaian aiaatadteiiasshelaLaugabiontagaesmeaiintiniakiaaisigbiniecetaian 14

William M. Marine and Tracy Jack, Analysis of Toxicology
Reports from the 1992 Census of Fatal Occupational
Injuries, Compensation and Working Conditions, Oct.
i TIN caicccinasttedccocesiniateiiaselsninsiahnibalabiieiedeemnaanens 12

No. 99-1038

In The

Supreme Court of the United States
October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
V.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17;
LOCAL 1503, UNITED MINE WORKERS OF AMERICA,
Respondents.

/

On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit

BRIEF OF AMICUS CURIAE,
THE INSTITUTE FOR A DRUG-FREE WORKPLACE,
IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS'

The Institute for a Drug-Free Workplace (the “Institute”)
is a non-profit coalition of major businesses and business
organizations dedicated to promoting and protecting the
interests of employers and employees in effective and

' The Institute hereby certifies, in accordance with Rule 37.6 of
this Court, that no counsel for a party authored this brief in whole
or in part, and no person or entity, other than the Institute for a
Drug-Free Workplace, its members, or its counsel, has made a
monetary contribution to the preparation or submission of this
brief.

responsible drug-abuse prevention programs. The Institute
includes in its membership many of the largest employers in
the United States, and a wide range of companies of all sizes,
chambers of commerce, trade associations, and community
coalitions.

Among other functions, the Institute disseminates
information to assist in the development of workplace drug-
abuse prevention and treatment programs, and to positively
influence the national, state, and local consideration of drug-
abuse prevention issues. The Institute is uniquely positioned
to provide relevant and helpful information on the nature and
dangers of substance abuse, and on the design and
implementation of effective policies and procedures to
combat those problems in the workplace, particularly where
such policies promote the safety and welfare of employees,
their co-workers, and the public at large.

The Institute has a significant interest in the questions
presented in this case. By holding that an arbitration award
reinstating an employee, who has repeatedly tested
“positive” for illegal drug use, to a safety-sensitive position
does not violate public policy, the U.S. Court of Appeals for
the Fourth Circuit has failed to recognize the increased
likelihood that the employee’s drug-related impairment
could cause or contribute to an accident and the potentially
catastrophic consequences of such an accident. The decision
inappropriately and unjustifiably undermines employers’
ability to provide safe workplaces, and to take necessary
steps to protect life, property, and the environment.

The Institute’s members have a strong interest in
ensuring that the disciplinary component of their drug-free
workplace policies cannot be evaded by employees who —
like the employee in this case — claim to have temporarily
relapsed into illegal drug use because of a “personal/family
problem.” A policy of mandatory reinstatement of a safety-

sensitive employee who tested “positive” for marijuana, if
not reversed by this Court, would drastically diminish the
positive deterrent effect that drug-free workplace programs
have on employee substance abuse.

INTRODUCTION AND SUMMARY

The Fourth Circuit’s decision to uphold the arbitrator’s
award reinstating former employee James Smith (“Mr.
Smith”) violates the well-established public policy against
allowing drug-impaired employees to work in safety-
sensitive positions. As the First, Third, Fifth, Eighth, and
Eleventh Circuits have recognized, prohibiting reinstatement
of safety-sensitive employees who have tested “positive” for
illicit drug use is a logical and necessary application of that
public policy. That public policy — grounded in concerns
relating to public, environmental, and workplace safety — is
of overriding importance, and requires that the Fourth
Circuit’s decision be reversed.

Petitioner’s employee, Mr. Smith, was a Mobile
Equipment Operator. That position required a Commercial
Driver’s License, and thus Mr. Smith was subject to drug
and alcohol testing under the U.S. Department of
Transportation’s regulations. In addition, Petitioner’s drug-
free workplace policy requires all employees to submit to
random drug testing. Petitioner’s policy provided that a
driver who tests “positive” for illegal drugs will be removed
from any safety-sensitive position and subject to disciplinary
action up to and including termination.

In March 1996, Mr. Smith tested “positive” for
marijuana, and Petitioner suspended him with the intent to
discharge him. Mr. Smith grieved Petitioner’s action. An
arbitrator reinstated Mr. Smith on the condition that he
participate in a substance-abuse treatment program and

submit to random drug testing for the following five years.
Less than a year and a half after his first “positive” test, Mr.
Smith tested “positive” for marijuana again. Petitioner
suspended Mr. Smith, who grieved the impending discharge
through his union, the Respondents in this case. The
arbitrator reinstated Mr. Smith, finding credible his
testimony that “a personal/family problem... caused this one
time lapse in drug usage.” Seemingly acknowledging the
danger of reinstating Mr. Smith, the arbitrator noted “{i]f the
arbitrator was misled by the gnievant, the arbitrator is
confident that the grievant will make another misstep with
drug use and be caught.”

Petitioner filed a lawsuit to vacate the arbitration award
in the U.S. District Court for the Southern District of West
Virginia, which ruled that the arbitration decision be
enforced. Petitioner appealed that decision to the U.S. Court
of Appeals for the Fourth Circuit, which affirmed the District
Court’s decision. Petitioner requested rehearing and
rehearing en banc, which were denied.

The same safety concerns that motivated the widespread
adoption of workplace drug-testing policies, particularly for
employees working in safety-sensitive positions, support a
broad public policy against reinstating employees who have
failed drug tests to safety-sensitive positions. Reinstatement
to a safety-sensitive position violates public policy by
compromising multiple, compelling safety interests. Such a
conclusion clearly violates public policy by undermining the
myriad requirements that lawmakers and employers have
adopted to ensure that substance abusers are not employed in
these positions. Despite this well-defined public policy
against reinstatement of safety-sensitive employees who
have tested “positive,” the Fourth Circuit upheld the
reinstatement of Mr. Smith to his safety-sensitive position.
If this arbitration had been held in the First, Third, Fifth,

Eighth, or Eleventh Circuit, the award would have been
vacated.

For these reasons, the Institute urges this Court to
recognize that public policy forbids the reinstatement of
substance abusers to safety-sensitive positions, and to
reverse the decision of the Fourth Circuit.

ARGUMENT

i. PUBLIC POLICY DICTATES THAT DRUG-
OR ALCOHOL-ABUSING EMPLOYEES NOT
BE PERMITTED TO WORK IN SAFETY-
SENSITIVE POSITIONS.

This Court, the Executive Branch, the Legislative
Branch, numerous lower federal courts, and state legislatures
and courts have articulated a consistent and forceful legal
doctrine that to permit safety-sensitive employees to engage
in illicit drug and alcohol use — including reporting to work
with a detectable amount of drugs or alcohol in one’s system
— would violate public policy.

A clearly defined and dominant public policy supports
the removal of potentially drug- or alcohol-impaired workers
from safety-sensitive positions. This policy has been
expressed explicitly again and again through a large volume
of federal court decisions, Executive Orders, federal
legislation, federal regulations, state court decisions, and
state legislation.

A. The U.S. Supreme Court Has Recognized the
Public Policy Against Employing Drug or
Alcohol Abusers in Safety-Sensitive Positions.

This Court, in Skinner v. Railway Labor Executives’

Association, 489 U.S. 602 (1989), and National Treasury
Employees Union vy. Von Raab, 489 U.S. 656 (1989),
recognized the public policy against allowing impaired
employees to work in safety-sensitive positions — such as the
one Mr. Smith held at Eastern Associated Coal Corporation.

In Skinner, this 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, despite the
Constitutional prohibition against the government
conducting unreasonable searches of individuals.

Similarly, in Von Raab, this Court held that U‘S.
Customs agents who carry firearms could be subject to
mandatory drug testing because of the dangers associated
with the possible impairment of agents in these positions.

B. The Executive and Legislative Branches of the
Federal Government Have Recognized the
Public Policy Against Employing Drug or
Alcohol Abusers in Safety-Sensitive Positions.

The policy against employing substance abusers in
safety-sensitive positions also has been incorporated into
federal law by the Executive and Legislative Branches.
Executive Order 12,564, issued by President Reagan in 1986,
mandated that the heads of all executive agencies of the
federal government establish a drug-free workplace program.

In 1988, Congress enacted the Drug-Free Workplace Act,
which requires federal contractors and grantees to establish a

ee ee

=

drug-abuse prevention program including education,
counseling, and penalties for drug use. 41 U.S.C. § 702(a)
(1994).

Congress next enacted (by wide vote margins in both the
Senate and the House of Representatives) the Omnibus
Transportation Employee Testing Act of 1991, 49 U.S.C. §
5331 (1997). Pursuant to this law, the Department of
Transportation, through its five operating agencies,
established mandatory substance-abuse _ prevention
requirements for 8.1 million workers in safety-sensitive,
transportation-related positions in the private sector
(including, of course, Mr. Smith’s position). The Federal
Aviation Administration (“FAA”), the Research and Special
Projects Administration (“RSPA”), the Federal Railroad
Administration (“FRA”), the Federal Highway
Administration (“FHWA”), and the Federal Transit
Administration (“FTA”) promulgated detailed regulations in
this area, all of which reflect the policy judgment that no
drug- or alcohol-impaired employees should work in safety-
sensitive positions in transportation operations — and all of
which require the removal of employees who test “positive”
from such positions.”

The Department of Energy (“DoE”) and Department of
Defense (“DoD”) also have issued regulations to ensure that
safety-sensitive jobs are not performed by drug abusers.
DoE and DoD contractors must have programs to identify
those who engage in illicit drug use, including testing of

? See 14 C.F R. Part 121, Appendices I and J (2000) (FAA); 49
C.F.R. Part 199 (1999) (RSPA); 49 C.F.R. Part 219 (1999) (FRA);
49 C.F.R. Part 382 (1999) (FHWA); 49 C.F.R. Parts 653 and 654

(1999) (FTA).

8

employees who perform sensitive functions — that is,
functions that pose dangers to public health and safety.’

C. State Legislatures and Courts Have Recognized
the Public Policy Against Employing Drug or
Alcohol Abusers in Safety-Sensitive Positions.

A vast majority of the states also have recognized this
public policy in one way or another. Many state legislatures
have enacted statutes encouraging and rewarding employers
who implement drug-free workplace programs including
drug testing, by disqualifying substance abusers from
receiving unemployment and workers’ compensation
benefits.

For example, 24 state unemployment compensation
statutes explicitly deny unemployment benefits to workers
who were dismissed due to alcohol or drug use.* In the
absence of an explicit statutory provision, unemployment
commissions in many other states faced with a worker

> See 10 C.F.R. Part 707 (2000); 48 C.F.R. Part 252.223-7004
(1999); see also 48 C.F.R. Part 1852 (1999) (National Aeronautics
and Space Administration drug-testing requirements for
contractors); 10 C.F.R. Part 26 (2000) (Nuclear Regulatory
Commission drug-testing requirements for nuclear plant
employees).

* See, e.g., ALA. CODE § 25-4-78 (Supp. 1998); ARIZ. REV.
STAT. § 23-619.01 (1993); CAL. UNEMP. INS. CODE § 1256.5
(West Supp. 1999); FLA. STAT. ANN. § 443.101 (West 1997 &
Supp. 1999); GA. CODE ANN. § 34-8-194 (Michie 1998); LA.
-REV. STAT. ANN. § 23:1601(10) (West Supp. 1999); VA. CODE
ANN. § 60.2-618(2)(b) (Michie 1998); W. VA. CODE § 21A-6-3
(1996).

iy OP ae

dismissed for drug or alcohol use have denied claims for
unemployment benefits.”

Similarly, 45 states have enacted explicit statutory
limitations on the receipt of workers’ compensation benefits
by an employee who is injured due to his or her own drug or
alcohol use.° In the absence of statutory provisions for
automatic denial of benefits, state courts have denied
alcohol- and/or drug-impaired 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 for job loss or for injury
when they intentionally endanger themselves and others by
using drugs and alcohol.

5 See, e.g. Risch v. State, 879 P.2d 358 (Alaska 1994);
Clevenger v. Employment Sec. Dep’t, 770 P.2d 866 (Nev. 1989);
Warren v. Employment Sec. Dep't, 724 P.2d 227 (N.M. 1986).

6 See, e.g., ALA. CODE § 25-5-51 (1992); CAL. LAB. CODE §
3600 (West 1989 & Supp. 1999); FLA. STAT. ANN. § 440.09
(West 1993); GA. CODE ANN. § 34-9-17 (1998); LA. REV. STAT.
ANN. § 23:1081 (West 1998); MISS. CODE ANN. § 71-3-7 (1995);
TEX. LAB. CODE ANN. §§ 406.032 & 401.013 (West 1996); VA.
CODE ANN. § 65.2-306 (Michie 1995); W. VA. CODE § 23-4-2
(Supp. 1998).

7 See, e.g., Parro v. Industrial Comm'n of Illinois, 657 N.E.2d
882 (Ill. 1995).

10

Il. PROHIBITING REINSTATEMENT OF
SAFETY-SENSITIVE EMPLOYEES WHO
FAIL DRUG TESTS IS A LOGICAL AND
NECESSARY APPLICATION OF THE
PUBLIC POLICY WHICH GIVES PRIORITY
TO WORKPLACE, PUBLIC, AND
ENVIRONMENTAL SAFETY.

The First, Third, Fifth, Eighth, and Eleventh Circuits all
have ruled that arbitration awards reinstating employees who
have tested “positive” for illicit drug use to safety-sensitive
positions violate public policy.* However, the Second,
Fourth, Sixth, Ninth, and Tenth Circuits have reached the
opposite conclusion.’

A. Reinstatement of Employees Who Fail Drug or
Alcohol Tests Violates an Established Public
Policy Because It Drastically Undermines
Employer Efforts to Prevent the Placement of
Substance Abusers in Hazardous Positions.

Employers with safety-sensitive operations hire from a
population in which nearly three-quarters of America’s illicit

® See Exxon Corp. v. Esso Workers’ Union, Inc., 118 F.3d 841
(1“ Cir. 1997); Exxon Shipping Co. v. Exxon Seamen's Union, 11
F.3d 1189 (3d Cir. 1993); Exxon Corp. v. Baton Rouge Oil &
Chem. Workers Union, 77 F.3d 850 (5" Cir. 1996); Union Pac.
R.R. Co. v. United Transp. Union, 3 F.3d 255 (8" Cir. 1993);
Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 861 F.2d 665
(11" Cir. 1988).

° See IBEW, Local 97 v. Niagara Mohawk Power Corp., 143
F.3d 704 (2d Cir. 1998); Eastern Associated Coal Corp. v. United
Mine Workers of America, No. 98-2527, 1999 WL 635632 (4" Cir.
Aug. 20, 1999); Tennessee Valley Auth. v. Tennessee Valley
Trades and Labor Council, 184 F.3d 510 (6" Cir. 1999); United
Transp. Union v. Union Pac. R.R. Co., 116 F.3d 430 (9™ Cir.
1997); Kennecott Utah Copper Corp. v. Becker, 195 F.3d 1201
(10" Cir. 1999).

11

drug users are employed.’ The U.S. Department of Health
and Human Services has estimated 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 under
the Occupational Safety and Health Act to ensure safe and
healthy workplaces for all of their employees. 29 US.C.A.
§ 654 (a)(1) (1999).

Furthermore, employers are liable in tort to individuals
who suffer personal injury and/or property damage as a
result of an accident. When catastrophic events occur due to
drug or alcohol use by employees in safety-sensitive
positions, the financial consequences 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 is a realistic threat.

Drug and alcohol use are known to substantially impact
workplace safety. For example, drug-using employees were

10 According to the most recent government figures, 73 percent
of all current illicit drug users are employed. Substance Abuse
and Mental Health Services Administration, U.S. Department of
Health and Human Services, 1998 National Household Survey on
Drug Abuse (Aug. 1999).

'! U.S. Department of Health and Human Services, National
Drug Survey Results Released with New Youth Public Education
Materials (Sept. 12, 1995).

12

found to be 3.6 times more likely to be involved in a
workplace accident than are employees who do not use
drugs.'* In addition, a Utah Power and Light study estimated
that employees testing “positive” on drug tests were five
times more likely to be involved in a vehicle accident than
those who tested “negative.”!?

Studies also show that workplace fatalities are frequently
attributable to employee drug and alcohol use. An analysis
of truck drivers killed in over-the-road vehicle accidents
found that 33 percent of the drivers had detectable
concentrations of psychoactive drugs or alcohol in their
systems.'* In addition, illicit drugs or alcohol were found in
one-sixth of workers who were fatally injured in 1992.'°

'2 Thomas E. Backer, Strategic Planning for Workplace Drug-
Abuse Problems, National Institute on Drug Abuse, at 4 (1987).

'3 Dennis J. Crouch, et al., A Critical Evaluation of the Utah
Power and Light Company’s Substance Abuse Management
Program: Absenteeism, Accidents, and Costs, Drugs in the
Workplace: Research and Evaluation Data, National Institute on
Drug Abuse, at 169, 186 (1989); see also Occupational Health
Programs React As Some Employees Decide Drug Testing Doesn't
Work, Occupational Health Management, Mar. 1994, at 33
(employees who tested “positive” for drugs are 60 percent more
likely to be responsible for plant accidents than those who have
not); David L. Durbin, Alcohol Consumption and Workplace
Accidents, NCCI Digest, Dec. 1991, at 39 (five states with the
highest alcohol consumption have 33 percent higher average
workers’ compensation costs).

'* Dennis J. Crouch, et al., Prevalence of Drugs and Alcohol in
Fatally Injured Truck Drivers, 38 J. Forensic Sci. 1342 (1993).

'S William M. Marine and Tracy Jack, Analysis of Toxicology
Reports from the 1992 Census of Fatal Occupational Injuries,
Compensation and Working Conditions, Oct. 1994, at 2; see also
Glenna Kay Twing, Working High: When Employees Take Hits,
So Do Profits, Journal of Property Management, Nov.-Dec. 1995,

os EOE

13

Given the magnitude of the nation’s drug- and alcohol-
abuse problem, it would be naive to assume that employees
in safety-sensitive positions do not abuse drugs or alcohol.
In fact, the latest drug-test “positive” figures show otherwise:
4.8 percent of the 5.7 million employees and applicants who
were tested for drugs at SmithKline Beecham laboratories in
1998 tested “positive.”"°

Of more direct relevance, out of more than 650,000 drug
tests performed by that one commercial laboratory on safety-
sensitive transportation workers, 3.4 percent tested
“positive” for illegal drug use. That percentage indicates
that at least 22,100 individuals in safety-sensitive jobs in the
transportation industry who knew they were subject to drug
testing still tested “positive” for illicit drug use.

Furthermore, in a national survey of employees, 35
percent of full-time employees interviewed 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.”'’ In addition, 59 percent agreed that alcohol
abuse is a major workplace problem.

Studies have documented declines in workplace
accidents after substance-abuse problems were reduced or
eliminated through workplace drug testing. For example, a
survey of construction industry companies revealed that

at 20 (up to 40 percent of industrial fatalities can be attributed to
substance abuse).

'6 SmithKline Beecham, SmithKline Beecham Drug Testing
Index (Mar. 16, 1999).

'7 Survey of 1,006 Full-Time Employees, Aged 18 and Older,
Working Outside of the Home, conducted for the Institute for a
Drug-Free Workplace by the Gallup Organization, Princeton, New
Jersey (Nov. 1995).

14

where substance-abuse testing was implemented, workplace
accidents declined by 34 percent.'* In addition, Utah Power
& Light experienced 27 percent fewer vehicle accidents in
the first year that employees were subject to drug. testing and
31 percent fewer vehicle accidents the next year.

Studies of workers who test “positive” for drug use
establish that the costs of workplace substance abuse can be
cut by implementation of substance-abuse detection
programs. For example, the U.S. Postal Service and Georgia
Power Company found that they could have saved $105
million and $1.7 million, respectively, by discharging
employees who failed drug tests.

Legislators, regulators, and employers have relied on this
information and similar data-in formulating policies and
strategies to protect the public from these well-documented
risks. If arbitrators and courts effectively mandate that a
safety-sensitive employee who tests “positive” for illegal
drugs twice should be reinstated, they will frustrate the
underlying purposes of these laws, regulations, and policies,
and place the public at much greater risk.

'® National Association of Plumbing-Heating-Cooling Contract-

ors, The Construction Industry Survey on Substance Abuse (April
1992).
' Dennis J. Crouch, et al., A Critical Evaluation of the Utah
Power and Light Company's Substance Abuse Management
Program: Absenteeism, Accidents, and Costs, Drugs in the
Workplace: Research and Evaluation Data, National Institute on
Drug Abuse, at 169, 187 (1989).

2° United States Postal Service, Personnel Research &
Development Branch, Office of Selection and Evaluation,
Preemployment Drug Testing: Associations with EAP,
Disciplinary, and Medical Claims Information (July 1992); John
Sheridan & Howard Winkler, An Evaluation of Drug Testing in
the Workplace, Drugs in the Workplace: Research and Evaluation
Data, National Institute on Drug Abuse, at 195-216 (1989).

—

15

B. Employers with Effective Substance-Abuse
Prevention Programs Terminate Employees
Who Twice Test “Positive” for Illicit Drug Use.

For a drug-testing program to be effective, there have to
be appropriate sanctions which employees know will result if
they violate the policy. A survey of the Institute’s members
found that 70 percent of the companies always terminate
employees for a second “positive” test.7’ In addition, a
survey of the Institute’s members in the oil and chemical
industries found that 82 percent terminate employees for a
second “positive” test, and 94 percent sometimes terminate
employees for a first “positive” test.”

If safety-sensitive employees must be reinstated after a
second “positive” drug test, their employers’ drug-free
workplace policies are rendered impotent. They essentially
have no deterrent effect, and the detection impact is greatly
reduced as a segue to rehabilitation opportunities.

Thus, the perpetuation of such a precedent would destroy
the value of workplace drug-testing programs. If drug-
abusing employees know they can be caught without there
being adverse consequences, they will not fear being caught.
Thus, the incentives to stop engaging in illicit drug abuse —
or not to start — would be eviscerated.

21 Institute for a Drug-Free Workplace. “Member Survey:
Corporate Drug and Alcohol Policies and Programs. #
Washington, D.C. (1994).

22 Institute for a Drug-Free Workplace. “Oil and Chemical
Industries Survey of Corporate Substance-Abuse Prevention
Programs and Policies.” Washington, D.C. (1996).

16

C. Alcoholism and Drug Addiction Are Chronic
Conditions for Which the Risk of Relapse Never
Disappears.

Drug addiction and alcoholism are chronic diseases, and
the possibility of relapse at any given time is both real and
unpredictable. Medical evidence shows that for addicted
individuals who seek rehabilitative services, the recidivism
rate is disturbingly high. One study of alcohol recidivism,
for example, reported that approximately 90 percent of
alcoholics are likely to experience at least one relapse over
the four-year period following treatment.”

A good-faith attempt by highly motivated individuals to
cease the use of abusive substances does not guarantee a
cure: in a 15-year study of alcoholics who were able to
abstain for two years, 41 percent later relapsed, many after
more than a decade of abstinence.”

Success in overcoming drug dependency is even more
elusive. A nationally representative longitudinal study of
drug users showed that five years after completing
rehabilitation, the treated individuals reported a 21 percent
decline in the use of any illicit drug — meaning that 79
percent continued to use drugs at least at the same rate as
they did before treatment.”° Another recent study reported

>> J. M. Polich et al., Stability and Change in Drinking Patterns,
The Course of Alcoholism: Four Years After Treatment, 159-200
(1981).

** George Vaillant, M.D., A Long-Term Follow-Up of Male
Alcohol Abuse, Archives of General Psychology, Volume 53 (Mar.
1996).

*° The study analyzed the success rates of in-patient, out-patient,
and a variety of other types of rehabilitation programs. Office of
Applied Studies, Substance Abuse and Mental Health Services
Administration, Services Research Outreach Survey (1998). The

17

that approximately 55 percent of people with chemical
dependency are prone to relapse at some time.”°

While these figures demonstrate that some substance
abusers may benefit from treatment, they in no way support a
conclusion that a former drug user who is able to return to
work is cured. In short, mo one can guarantee that an
alcoholic, or a drug addict or chronic drug abuser, can
abstain, will abstain, or will — or will not — relapse. Nor can
one say when and under what circumstances relapse will
occur.

What treatment professionals can predict is that relapse:
(1) is more likely to occur during times of heightened tension
or pressure (including on-the-job stress),”’ (2) is often linked
to interpersonal conflicts (which may arise away from work
and of which the employer is unlikely to have knowledge),”*
and (3) is more likely to occur when the historically
substance-abusing individual is in isolation or relative
isolation (such as in a job without on-going direct
supervision).””

Significantly, in a world where the majority of
individuals with substance-abuse problems have few or no
treatment options — or, at most, are offered three months of
rehabilitative services — 85 percent of those who began the
highly regarded and _ well-funded addiction-treatment

study is accessible through SAMHSA’s web site at
http://www.samhsa.gov.
2° M. Dusoe, The Use of Self-Efficacy Training in the Treatment
of Relapse-Prone Individuals, EAPA Exchange, at 6 (Feb. 1995).
7 R.L. Rogers & C.S. McMillan, Relapse Traps: How to Avoid
the 12 Most Common Pitfalls In Recovery (Bantam Books 1991).
28 A. Beck et al., Cognitive Therapy of Substance Abuse (1993).
2° See n.27.

18

program at Phoenix House were unable to complete the two-
year treatment.°?

While no doctor, employee assistance professional, or
counselor can ever determine that any individual is fully
recovered and/or rehabilitated — nor can anyone predict or
prevent a relapse with any certainty — all reach one universal
conclusion: the rate of relapse always will be higher than the
rate of first-time drug addiction or alcoholism. The bottom
line is irrefutable: those with a history of substance abuse
pose a much greater risk of relapse and its attendant risks
than those without such a history.”!

The undeniable truth is that an historically addicted
individual may relapse into self-destructive addictive
behavior without obvious signs or warning, at any time, even
after years of sobriety or abstinence. If that individual’s job
includes safety-sensitive responsibilities, as Mr. Smith’s did,
the consequences of a relapse could be disastrous.

D. Reinstatement of a Safety-Sensitive Employee
Who Failed a Drug Test Sends the Wrong
Message to Courts, Arbitrators, Employers, and
Employees Regarding a Compelling Public
Policy.

Reinstatement of Mr. Smith would subvert public policy,
and send a jarring signal to employers that work diligently —
and successfully — to achieve the goal of a drug-free
workplace, particularly in safety-sensitive environments.
Rather than reinforcing the clear and dominant policy
endorsed by all levels and branches of government, the
Fourth Circuit’s holding — unless reversed — would frustrate

*° “Traditional Drug Programs Face Up to Chronic Recidivism,”
Washington Post (Aug. 20, 1990).
*" See n.24.

19

employers’ efforts to protect all at-risk parties and interests
from potentially catastrophic harm. It would condone
employee misconduct — illegal drug use — and undermine a
legitimate and widely accepted tool for achieving the critical
social goal of drug-abuse prevention.

The ruling of the Fourth Circuit in this proceeding
inappropriately subordinates the compelling interest of
keeping drug abusers out of safety-sensitive positions. It
would improperly insulate employee action at odds with the
goal (substance-abuse prevention) and methodology (testing
and disciplinary action) widely embraced by both the public
and private sectors, and would otherwise tend to perpetuate
the harm which public policy seeks to avoid.”

Employer practices throughout the country have proven
that comprehensive drug-testing and drug-abuse prevention
programs with known, uniform consequences are the most
effective means of preventing the harm that employee drug
abuse can cause. The effectiveness of drug testing, however,
is severely compromised when employees terminated for
illegal drug use are reinstated. The current unpredictability —
and sometimes irrationality — of arbitration decisions in this
regard fundamentally undermines the effectiveness of
workplace drug testing.

Clear tenets of public policy argue against allowing
impaired employees and employees who test “positive” for
illicit drug use to perform safety-sensitive jobs. The Institute
urges the Court not to frustrate employers and employees in
their efforts to achieve drug-free workplaces. The Court
should preserve employers’ rights to have meaningful and

* See, e.g., Newsday, Inc. v. Long Island Typographical Union,
915 F.2d 840 (2d Cir. 1990) (arbitrator’s reinstatement of
employee terminated for sexual harassment vacated due to conflict
with and adverse effect upon public policy interests).

20

effective drug-testing programs, and to terminate safety-
sensitive employees for “positive” drug tests.

In summary, if the Fourth Circuit’s decision is not t
reversed, drug testing will be much less effective at deterring
drug abuse. There will be more drug abuse by employees, a
substantial compromise of workplace safety, and an
undermining of most employers’ current substance-abuse
prevention programs. A policy which results in more drug
abuse cannot be a good thing. Protecting the rights of the
“James Smiths” of our society to continue to engage in

IORI a on RENT

dangerous and illegal behavior, while neglecting the nights of ’
others not to be endangered by the continued employment of E
a known, repeated drug abuser in a safety-sensitive position ‘

is the height of illogic. It is wrong. The Fourth Circuit was .
wrong. The U.S. Supreme Court should right this wrong. :

il. REVERSAL OF THE FOURTH CIRCUIT’S
DECISION IS NECESSARY TO PREVENT
FUTURE DRUG- AND ALCOHOL-RELATED
WORKPLACE TRAGEDIES.

The devastating effects of alcohol- and drug-impaired
employees are, unfortunately, widespread — and sometimes
are well-publicized.

For example, on February 13, 2000, a light rail train at
Baltimore-Washington International Airport crashed into a
steel barrier, injuring 22 passengers. The train operator
admitted to being under the influence of prescription drugs at
the time of the crash and subsequently was fired from his
job. The results of drug tests revealed that he also had
recently used cocaine. The train operator had been involved

21

in at least one prior accident while operating a light rail
train.”

Another recent example occurred on May 9, 1999, when
a tour bus carrying nursing home residents veered across
three lanes of traffic and crashed into a concrete and dirt
embankment. Twenty-two of the passengers were killed. At
the hospital after the accident, the driver tested “positive” for
marijuana. Later investigation revealed he previously had
been discharged from two bus driver jobs after he tested
“positive” and failed successfully to complete rehabilitation.
He also had tested “positive” for cocaine on a
preemployment drug screen administered by Greyhound.**

Another highly publicized fatal accident involving a
drug-impaired employee occurred on April 15, 1998, when a
truck driver drove a gasoline tanker filled with 9,100 gallons
of fuel off the road and through the fence of an asphalt
refinery in Portland, Oregon. The driver died in the crash,
and toxicology tests showed that he had alcohol, cocaine,
marijuana, and methamphetamines in his system. :

In fact, the impetus for Congressional action on required
drug and alcohol testing for employees in safety-sensitive,
transportation-related jobs came from two fatal disasters
caused by drug-impaired employees.

3 Lyndsey Layton and Don Phillips, Drug Use Cited in Crash of
BWI Train, Wash. Post, Feb. 24, 2000, at B1; Matthew Mosk,
Driver in BWI Train Crash Had Prior Rail Accidents, Wash. Post,
Feb. 25, 2000, at B1.

** Kristen Delguzzi, Driver Fired Twice For Drug Use, New
Orleans Times Picayune, May 14, 1999, at Al.

35 Maxine Bernstein, Trucker in Wreck Had Drugs in System,
The Oregonian, Apr. 30, 1998, at 5.

22

First, on January 4, 1987, a high-speed Amtrak passenger
train collided with three Conrail locomotives at a junction in
Chase, Maryland. Sixteen people were killed, 170 people
were seriously injured, and $19 million in damages were
caused. The engineer and brakeman of the Conrail
locomotives both tested “positive” for manjuana after the
accident.°°

Subsequently, on August 28, 1991, a subway train in
New York City derailed, killing 5 people and injuring more
than 200 people. The subway motorman was legally drunk
and ran the subway across a switch at high speed. In
addition, an empty vial with traces of crack was found in the
cab of the train. The motorman, who was not injured in the
accident, was charged with manslaughter.°’

If this Court affirms the Fourth Circuit’s decision that
reinstatement of a safety-sensitive employee who has tested
“positive” for illicit drug use does not violate public policy,
James Smith may well be the perpetrator of the next
catastrophic drug-related workplace acciden’

CONCLUSION

The Institute for a Drug-Free Workplace respectfully
urges the Supreme Court to reverse the rulings that would
require the reinstatement of James Smith despite his
recurring illegal conduct and violations of company policy —
specifically, his repeated “positive” drug tests — and to
recognize that his mandated reinstatement would be a clear
and indefensible violation of public policy.

°° Reginald Stuart, Drug Trace Found in 2 Rail Workers After
Fatal Crash, N.Y. Times, Jan. 15, 1987, at Al.

*7 Alan Finder, IRT Driver Charged in 5 Deaths; Crash Shuts
Line and Ties Up City, N.Y. Times, Aug. 29, 1991, at Al.

May 4, 2000

23

Respectfully submitted,

PETER A. SUSSER

Counsel of Record
MARK A. DE BERNARDO
KATHERINE A. GOETZL
LITTLER MENDELSON, 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0594%3A16. Public record. Not legal advice.