Monday, November 14, 2016

Arbitrator Upholds Use Of Drug Treatment Records To Establish Just Cause For Termination

Employee substance abuse is a critical problem that affects many employers and creates considerable workplace safety issues, particularly when an employee is under the influence of illegal drugs or alcohol at work. That’s why substance abuse in the workplace is not generally subject to progressive discipline and typically grounds for immediate termination.

While positive drug tests are typically the mechanism for determining whether an employee is under the influence of illegal drugs or alcohol, employers rarely have the opportunity to use medical treatment records in the disciplinary process. The reason is because treatment records are generally protected by state and federal confidentiality laws and unavailable to employers in the disciplinary process. That reality, however, may change in the labor context. By way of an arbitration award that was subsequently upheld by the circuit court, employers are now armed with additional tools – medical treatment records and last chance agreements – to proactively address and remedy substance abuse in the workplace.

The issue of whether an employer could use treatment records in a disciplinary proceedings arose in City of Chicago and the Chicago Firefighters Union, Local 2, in which the City’s Fire Department sought to terminate a firefighter who violated the terms and conditions of a last chance agreement (“LCA”) when his substance abuse relapsed. By way of background, the firefighter initially signed the LCA in 2006 for violating the Fire Department’s drug and alcohol policy, and with which he had promised to comply for the duration of his career with the Fire Department’s alcohol and substance abuse policy. The firefighter did not comply with his obligations under the LCA. The firefighter’s second involvement with drugs and alcohol occurred when he checked himself into a rehabilitation center and told an intake worker that he had relapsed and used cocaine. When the firefighter returned to the Department, as part of his many obligations under the LCA, he signed a waiver permitting the Department to obtain his medical records from the drug treatment facility so that the Department could determine whether the firefighter was in compliance with the LCA.

Central to the dispute was the Fire Department’s use of drug treatment records to demonstrate the firefighter was again abusing drugs in violation of the LCA. Although there was no dispute that the firefighter voluntarily signed the waiver permitting the rehabilitation center to disclose his medical records to the Fire Department, prior to the arbitration hearing, the Union filed a motion in limine to prevent the admission of the firefighter's drug treatment records into evidence. The arbitrator denied the union’s motion on the grounds that the firefighter provided express written consent for the drug treatment facility to disclose his drug treatment records to the Fire Department’s Medical Division for its review and use.  In denying the motion in limine, the arbitrator explained that because he was mutually selected by the parties to determine just cause, he found that it was permissible for him to receive and analyze the evidence (i.e., the firefighter’s drug treatment records) that the City used to establish just cause determination.  The arbitrator further reasoned that “to exclude such evidence would be to ignore the whole basis on which the employer acted.”

Shortly thereafter, the arbitrator entered a final award finding that the Fire Department had just cause for terminating the firefighter when he had a second involvement with drugs in violation of his LCA. The Union subsequently filed a petition to vacate, claiming the award should be vacated because it contravenes public policies clearly enunciated in federal and state confidentiality statutes protecting drug treatment records, specifically public policy that society wants to keep such records confidential to encourage drug users to seek treatment without fear of disclosure or prosecution. The City successfully obtained dismissal as the circuit court agreed that the firefighter specifically signed a valid consent for the use and disclosure of his drug treatment records to the Fire Department as an organization.  The circuit court found that the firefighter waived the confidentiality protections through his consent and did not contravene the stated public policy.  The circuit court also rejected the Union's argument that the firefighter’s further consent was required for the medical division to share his medical records with the disciplinary officer.

This case and the factual circumstances are instructive when considering whether to use drug treatment records to discipline employees. To that end, in determining to discipline employees with substance abuse problems, we recommend employers consider the following:

  1. Indeed, employers have an interest in encouraging employees who suffer from substance abuse problems to seek counseling. But abuse is the problem and employers must be able to guard against future instances of drug or alcohol use either through outright termination or a “last chance.”
  2. In lieu of terminating an employee in a first instance of substance abuse, employers may consider utilizing a last chance agreement as part of the disciplinary process. Termination for a subsequent violation presents an employer with a much stronger case at arbitration.
  3. Make certain that any last chance agreement respective to drug or alcohol abuse requires: (1) counseling and/or rehabilitation; (2) an employee affirmation to refrain from any drug or alcohol use; (3) an express waiver of confidentiality in which the employee agrees to provide pertinent drug treatment records should the employee ever have a second involvement with drugs or alcohol; and (4) immediate termination for recurrence.
  4. Employers should make clear in its medical release that protected information can be disclosed employer-wide, not just to a particular division within the employer. In doing so, employers can ensure internal sharing will not constitute a “redisclosure” and jeopardize the use of medical records for disciplinary purposes.

Please contact us if you have any questions about the award or handling disciplinary matters that involve substance abuse.