A Washington State Alaska Airlines employee who was terminated for a positive test of marijuana was reinstated this month, after challenging the decision. He claimed he had not used cannabis knowingly and did not know how THC could have entered his system.
A random drug test was administered in July 2022 to the worker, whose identity was removed from an arbitral decision by his union’s lawyer. The THC metabolites were above the minimum threshold. He was fired immediately because his role as a lead aircraft maintenance technician is highly safety-sensitive.
According to the facts in the arbitration panel’s ruling, the employee, referred to as “grievant”, did not deny that the test results were accurate, but “he denied using marijuana or any other drugs and could only speculate he might have accidentally ingested marijuana edibles at a recent block party/barbecue.”
In an interview with an Alaska Airlines maintenance manager, the worker said: “I don’t use marijuana.” He said that he would have consumed it only through the barbecue.
The worker was employed by the airline since he was 24 years old, and had worked there for 22 years. He also had passed random drug tests and had no disciplinary records. He had been in a leading role since 2017.
The worker attended a block party held in Washington State where cannabis is legal by state law, despite the fact that the airline industry remains federally regulated.
The arbitral board’s decision was a “toehold” on realism, according to the lawyer who won the case for the Aircraft Mechanics Fraternal Association.
Lee Seham of Seham Seham Meltz Petersen, New York said, “It appears that for the first, this tectonic change we have felt under our feet, is now beginning to reflect in decisions related a marijuana-positive.”
Alaska Airlines said that it was undeniable that the worker had failed the drug test. They also stressed that both he and other employees were regularly trained on the zero-tolerance policy of the company. According to the arbitration panel, the company claimed that the employee’s claim that he “may have unknowingly and accidently ingested marijuana edibles at a block-party simply” was “a fantastical and bizarre story.”
The company stated that “He concluded this theory was just a guess, that he didn’t have any reason to think that any of these’sweets contained marijuana’, that he experienced no physical symptoms that would indicate he’d consumed marijuana and that he’d done nothing to verify whether or not any of the sweets contained marijuana.” “A much more reasonable conclusion would be that Grievant’s THC was in his system as a result of him choosing to consume a marijuana-based product.”
The company claimed that a positive drug test is “conclusive evidence that the employee consumed the substance in question” and that there was no need to prove the worker’s intention to use a drug.
It said that “if any employee could escape the consequences for a positive test by simply denial drug use and claiming accident ingestion (without any corroboration),” “Alaska’s Drug and Alcohol Use Policy will be utterly toothless and Alaska’s Company would not have any meaningful way to discourage drug use among safety-sensitive employees.”
The arbitration panel, consisting of a neutral arbitrator, and representatives from the company and union, noted in a previous situation that Alaska Airlines had allowed another maintenance tech to return to his job after he reported eating a cookie laced with marijuana by mistake.
The AMT’s spouse had been visited by her neighbors, who brought a plate of marijuana-laced cookies. When the neighbors left, the wife put the cookies into the cabinet and went to sleep. The AMT found the cookies later and ate a few of them for snack when he got home.
In this case, the technician was able to determine through a discussion with his wife that he had eaten marijuana in the cookie.
The decision states that “AMT’s self report of accidental marijuana consumption played a major role in the Company deciding to allow him to resume work.” The decision states that Grievant was unable to self-report accidental ingestion of cannabis because he didn’t know, or had reason to suspect, it happened until he tested positively.
It adds that the earlier incident “suggests it may not have been as fantastical, utterly impossible or bizarre as it argues by the Company that someone attending an unidentified potluck block party would contribute marijuana edibles to other attendees for consumption.”
The panel ultimately decided that Alaska Airlines had not shown just cause to terminate an employee as required by union law. One supervisor admitted that he had not “specifically discussed” with anyone the fact that the worker denied intentionally using marijuana. Another airline supervisor testified that “we did not see any reason to pursue accident ingestion as that was never offered as a possible reason” for the failure test.
Seham, an attorney who represented the worker fired, explained that “just cause” is a concept which encompasses fairness. If someone claims innocence and you do not even look into his argument in the slightest, you are not complying with your duty to give them procedural and substantive fair process.
Alaska Airlines has not responded to Marijuana moment’s request for comment on this story.
The arbitral panel stressed the narrowness and specificity of its ruling, writing that it was not meant to suggest that the airline relax its strict policies on drug use “or that employees who test positive for drugs after a random testing can avoid termination by simply claiming that they ingested the drug accidentally.”
It said that the outcome was determined “based on unique facts, contractual language applicable and just cause standards.”
Seham acknowledged that the panel disclaimed its findings, but said the case showed “an indication” that people were beginning to ask themselves: “Is there something we should be doing differently?” ‘”
He continued, “Our position was that there has always been a distinction between alcohol and illegal drugs” in airline discipline matters. Alcohol discipline is usually based on impairment, and offers employees the chance to return to work. A positive THC test does not measure impairment.
He is aware that there is no accepted test for screening marijuana impairment. However, he believes there are ways to improve the random selection process. He said that marijuana tests should be limited to reasonable cause, where you can see signs of inebriation.
The arbitration ruling states that for now, the worker will be “reinstated under the condition of execution of a Last Chance Agreement” (LCA), similar to LCAs issued to other Alaskan employees who have been reinstated following a positive test.
Employers and policymakers have been prompted to rethink drug screening standards in light of the changing legal landscape in the United States, particularly in federally regulated industries.
The House Rules Committee has blocked a Democratic Congressman’s renewed efforts to stop the practice of testing federal job candidates for cannabis use.
In September, the House Oversight and Accountability Committee, a bipartisan committee, passed a bill that would prohibit the denial or refusal of federal employment and security clearances because a candidate has used marijuana in the past.
Despite the fact that reclassifying marijuana as Schedule III under ‘s Controlled Substances Act may eventually allow some federal employees to use medical marijuana , even in states where marijuana is currently illegal, federal contractors and grantees are unlikely to see any policy change. Contractors are prohibited from using or possessing “controlled substances” under federal law. Schedules I to V drugs are included in this definition.
The Substance Abuse and Mental Health Services Administration (SAMHSA) filed federal program rule changes last week clarifying that medical marijuana on a doctor’s recommendation, in a state where it is legal, does not qualify as an excuse for a THC positive test.
Click here to read the full decision of the Arbitration Panel:
Federal Clarifies that a positive THC test for medical marijuana is not an excuse under new workplace guidelines
Photo by Mike Latimer.
The article Alaska Airlines worker fired for positive marijuana test will be reinstated under arbitration panel decision appeared on Marijuana Moment.
