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Wednesday, May 11, 2011

Zero tolerance drug policy

Zero tolerance drug policy
Dept. of Corrections v Robbins, OATH 2030/99

Many employers have initiated “zero tolerance” policies requiring the automatic dismissal of individuals found to have violated the policy. These “zero tolerance” policies address a number of situations that the employer views as disruptive or dangerous, the most common involving the use of drugs by employees, on or off the job.

The New York City Department of Corrections had established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

Was dismissal the appropriate penalty in a case involving a civilian employee -- a dietary aide -- found to have smoked one marijuana cigarette, off-duty, almost two years before being charged with violating the policy? The administrative law judge did not believe it was, concluding that there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied.

The employee, Anthony Robbins, admitted he was guilty of the charge of using marijuana while off-duty. Although the department wanted him terminated for violating its “zero tolerance” drug policy, the hearing officer recommended that a lesser penalty be imposed. The mitigating circumstances set out by the hearing officer justifying the deviation from the policy included the following:

1. Since the time of the incident, Robbins had been in counseling, had undergone drug testing, and laboratory reports indicated that he tested negative for drugs.

2. The employee has continued in counseling and still undergoes, as part of counseling, drug screening.

3. The risk of Robbins’ being involved in drug smuggling at the facility is so negligible as to be speculative and therefore cannot justify termination.

4. In previous cases involving violations of the “zero tolerance” policy by civilian workers, the individuals were not terminated and lesser penalties were imposed by the department.

5. The department did not subject civilian workers to random drug testing procedures although it required uniformed employees to submit to random drug tests.

6. In one instance the department “converted a penalty of termination into a lengthy suspension with random drug testing against a correction officer found to have tested positive for marijuana.”

The hearing officer concluded these “mitigating circumstances” justified a departure from the “zero tolerance” policy’s “automatic termination” provision.

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