Labor & Employment Law

Testing positive for illegal drugs

By Harvey Randall, Esq.

Testing positive for illegal drugs
Department of Sanitation v Betancourt, OATH Index No. 1463/

Noel Betancourt, a sanitation worker, admitted testing tested positive for cocaine use.

The Administrative Law Judge, Alessandra Zorgniotti, noted that about two and half years earlier Betancourt had completed a two-year drug and alcohol-testing program characterized as a ?last chance agreement.?

Although acknowledging that there was evidence demonstrating that Betancourt?s use of drugs ?was due to a tragic on-the-job vehicle accident and that Betancourt is currently taking appropriate steps to gain control over his substance abuse,? nevertheless the ALJ recommended that he be terminated.

Judge Zorgniotti?s rationale for this recommendation:

Section 16-106 of the Administrative Code limits the penalties that may be imposed after a finding of misconduct to suspension without pay for a period not exceeding thirty days or dismissal from the Department -- a 30-day suspension is ?clearly? an inappropriate penalty for this third and very serious violation of the Department?s substance abuse policy.

Judge Zorgniotti said that ?My sympathy for Betancourt?s situation is outweighed by my concern that respondent poses an unknown safety risk.?

However, the ALJ also offered the following alternative for consideration by the appointing authority:

Given the unusual factors underlying respondent?s relapse and the fact that he has apparently re-gained control over his substance problem and is viewed by his colleagues as an asset to the Department, the Commissioner may wish to consider offering respondent a long-term probation.

Full post as published by New York Public Personnel Law on April 09, 2008 (boomark / email).