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Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test

Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test
Department of Sanitation and Henry Morrison, OATH Index No. 894/09

OATH Administrative Law Judge Kara Miller recommended termination for a sanitation worker, Henry Morrison, after finding that he was guilty of failing to be at home after reporting sick on two occasions and also failing to report for a random drug test.

As to his failing to report for the drug test, Morrison?s defense: he was ill and could not travel to the location where the test was to be administered.

Judge Miller, however, found that there was no reason Morrison could not have reported to the test site as scheduled for the drug test, commenting that an employee's refusal to report for drug testing must be treated as the equivalent of failing a drug test.

However, Judge Miller dismissed one of the charges filed against Morrison: a charge that Morrison failed to report to the clinic on the second day of taking sick leave. Although the Department had revised its rule and currently required employees subject to its provisions to report to the Department?s clinic on the second day of sick leave, it was unable to demonstrate that Morrison had receive notice of the rule change.

The Department?s former rule required such employee to report to the Department?s clinic no later than forty-eight hours after requesting medical leave and Morrison had complied with that provision contending that he was unaware of the rule change.

As to the recommended penalty, dismissal, Judge Miller said that she had ?requested and reviewed a copy of [Morrison?s] personnel abstract in order to make an appropriate penalty recommendation. She noted that Morrison had ?an extensive disciplinary history,? including being found guilty of charges involving having a suspended license; absences without authorization and a failure to report to the clinic; failing to be home while on sick leave on two occasions and a failure to report an arrest.

Judge Miller said that Morrison had also be found guilty of charges involving fighting with a co-worker; insubordination and received a reprimand for fighting with a co-worker; absences without authorization; lateness; and violating the Department?s drug policy on two occasions.

The full text of Judge Miller?s decision is posted on the Internet at:
http://www.citylaw.org/OATH/09_Cases/09-0894.pdf

Full post as published by New York Public Personnel Law on March 20, 2009 (boomark / email).