The Dayton, Ohio Police Department and the Fraternal Order of Police (FOP) have agreed to a random drug-testing program in their collective bargaining agreement. When a 15-year police officer tested positive for the presence of THC, the Department fired him. The FOP challenged the discharge in arbitration.
The officer’s explanation for the presence of THC in his blood was he had purchased five bottles of “hemp oil” from a health food store. Hemp oil was supposed to have the effect of boosting his immune system. The officer also pointed to two negative drug “screening” tests he took after testing positive in the City’s random test.
An arbitrator was unpersuaded by the officer’s explanation. To begin with, the Arbitrator pointed to the fact that inventory records of the health store identified by the officer disclosed no such sales during the period of time the officer was allegedly purchasing and consuming the hemp oil. The Arbitrator also noted that since the year 2000, the hemp industry had engaged in a successful effort to clean the hemp seeds of the THC found in their hulls.
As to the officer’s subsequent drug-screening test, the Arbitrator found the officer without “much persuasive force.” As the Arbitrator noted, “unlike the randomly-collected urine specimen testing, pre-scheduled urine sample collection and testing are subject to the possibility of fraud of the urine donor, abstinence of the drug, food and water intake, metabolism, and its excretion over time – all of which have an impact on test results.”
In the end, the Arbitrator accepted the City’s argument that the officer “pursued an uneducated attempt to fabricate an excuse after testing positive, then diluting his screening test results of subsequent urine samples with the consumption of large amounts of water.”
(Unreported decision; copies available from LRIS).
NOTE: Thanks to Downes, Hurst & Fishel, a Columbus, Ohio law firm, for providing us with a copy of the opinion.
This article appears in the February 2006 issue