Employment Law Daily Public policy didn't compel state hospital employee caught smoking pot on the job to be fired
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Tuesday, August 23, 2016

Public policy didn't compel state hospital employee caught smoking pot on the job to be fired

By Dave Strausfeld, J.D. Public policy did not require a maintenance employee at the University of Connecticut Health Center who was caught smoking marijuana on the job to be fired, held the Connecticut Supreme Court, concluding that a labor arbitrator’s decision reinstating the employee to his position after an unpaid six-month suspension was not so lenient that it contravened public policy.  Accordingly, the district court lacked grounds to overturn the arbitration award. Justice Espinosa concurred in the judgment (State of Connecticut v. Employees Union Independent, August 19, 2016 (official release date August 30, 2016), Rogers, C.). Caught in the parking lot. The employee was observed by a police officer smoking marijuana with a coworker while sitting in a state van parked in a secluded area of the health center campus. Firing him for this misconduct, the health center expressed concern that his facility maintenance position gave him unsupervised access to all areas of the health center, including laboratories, a daycare center, and the hospital. When his union grieved his termination, a labor arbitrator reduced it to an unpaid six-month suspension with some additional strings attached, such as submitting to random drug tests, citing his previous positive work record in more than 10 years at the health center. But the health center was adamant the employee should not be reinstated and took the matter to court. The trial court agreed that the arbitrator’s award violated the state’s public policy against marijuana use, and granted a motion to vacate the arbitration award. This appeal followed. Burr Road factors. The Connecticut Supreme Court’s decision in Burr Road Operating Co. II, LLC v. New England Health Care Employees Union provided the analytical framework for this case, because that 2015 decision clarified the factors a reviewing court should consider when evaluating a claim that an arbitration award reinstating a terminated employee violates public policy. Burr Road set forth four principal factors to assess: "(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible." Much of the dispute here centered on the second factor, related to safety risk. Although "hospital patients are a vulnerable population," the Connecticut high court acknowledged, the arbitrator made no finding that the employee’s "maintenance duties involved contact with patients or the medical equipment used in their diagnoses or treatment." Further, maintenance positions such as this are not the kind of safety-sensitive positions "typically associated with a public policy mandate that absolutely bars reinstatement following an instance of drug use." "Public policy based, judicial second-guessing." After assessing all four Burr Road factors—and emphasizing the employee’s past strong work record—the high court found that the trial court had no legitimate basis here to toss out the arbitrator’s award. "[P]ublic policy based, judicial second-guessing of arbitral awards reinstating employees," added the court, is reserved for "extraordinary circumstances, even when drug or alcohol related violations are at issue." In short, the six-month unpaid suspension adequately vindicated Connecticut’s public policy against marijuana use. The high court remanded the case to the trial court with direction to confirm the arbitration award reinstating the employee to his position. Concurrence. Justice Espinosa concurred "reluctantly" in the judgment based on the principle of stare decisis, agreeing that Burr Road mandated the result here. But she suggested that "as the plainly outrageous outcome in the present case demonstrates," the court should consider modifying the analysis set forth in Burr Road in order to provide for a "more flexible approach" when reviewing whether an arbitration award contravenes public policy. "In particular, I believe that our analysis should afford a more prominent role to the message that an award sends to the public at large concerning the public policies at issue," she commented.

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