By Alfonso A. Castillo (Transportation Reporter at Newsday)
alfonso.castillo@newsday.com; Twitter: @alfonsoreports
Updated June 22, 2023 8:43 am
Link to original article: Click here to view.
A Long Island Rail Road union is fighting to overturn the LIRR’s zero-tolerance employee marijuana policy, which it says violates state law allowing recreational pot use and unjustly cost two veteran electricians their jobs.
The allegations are included in a $6 million federal lawsuit filed by the International Brotherhood of Electrical Workers and one of the former employees, Ronald Dolginko, 60, who tested positive for marijuana metabolites in December 2021, upon returning to work after taking time off to recover from a heart attack.
The LIRR defended its pot policy as prioritizing safety and has dismissed the claims as “meritless.”
At the crux of the legal battle is whether the two men, who worked on train air conditioning systems in LIRR repair shops, held “safety-sensitive” positions — a designation that, under federal law, prohibits marijuana use whether on or off duty. The LIRR says they did. The union says they did not.
WHAT TO KNOW
The Long Island Rail Road’s electricians union is fighting to overturn the LIRR’s zero-tolerance employee marijuana policy, which led to two workers losing their jobs.
The two electricians tested positive for marijuana metabolites upon returning to work from extended medical absences. Both men deny having used marijuana, but also point out that the LIRR’s policy contradicts state law permitting recreational marijuana use.
The LIRR defended its policy on “performance impairing drugs” and said it will not compromise safety. The workers were not covered under federal regulations prohibiting marijuana use among safety-sensitive workers.
Union officials said the LIRR gave Dolginko the choice typically afforded to workers who test positive for marijuana — accept a six-month suspension, or take his chances at an internal disciplinary trial that could come with the penalty of termination. The North Babylon resident instead opted to retire last year after 25 years at the railroad.
Fellow electrician Daren Drew, 56, took the risk, lost at trial, and was fired last month. He, too, tested positive for marijuana metabolites in a physical exam required to return to work after an extended absence. Drew said he was recovering from cancer.
“I got the call at work. He said I failed the drug test. I said, ‘That’s impossible,’ ” Drew, of Laurelton, Queens, recalled. “You feel totally disrespected. There’s no regard for what you were going through medically.”
Both men deny ever using marijuana, and believe they received false positives because of medications they were taking. But either way, they point out that recreational marijuana use is no longer prohibited in New York, and that there is no indication they were ever under the influence while on the job. The LIRR acknowledged that much in Drew’s April trial.
The workers argued that the LIRR’s tests and punishments contradict state law passed in 2021 legalizing recreational marijuana use, and prohibiting employers from terminating or discriminating “against individuals because of their lawful use of marijuana outside of work hours.”
“It’s antiquated,” Drew said of the LIRR’s policy. “I mean, you have to change with the times.
“Dolginko added: “The laws are changing … The testing should be changed.”
David Steckel, spokesman for the Metropolitan Transportation Authority, the LIRR’s parent organization, defended the railroad’s policy prohibiting the use of controlled substances among workers with jobs involving safety, and said the LIRR’s testing requirements and standards are consistent with other railroads.
“We will not compromise safety where operations are involved, which is why LIRR employees are made aware of prohibitions regarding the use of marijuana and other performance-impairing drugs,” Steckel said in a statement. “We will continue to defend against these meritless allegations.”
A question of safety
Federal Railroad Administration regulations prohibit marijuana use among certain “safety-sensitive employees” — including some electricians — and allows for random drug tests of regulated employees. But the electricians’ union said Dolginko and Drew were not covered under the federal regulations.
Federal Railroad Administration officials, responding to Dolginko’s suit, on Tuesday confirmed that Dolginko was not covered under federal drug-testing requirements. For regulated employees, the FRA prohibits the use of marijuana — still recognized under federal law as a controlled substance — whether on or off duty. Although the FRA only addressed Dolginko’s status, the union pointed out that Drew held the same position.
However, the LIRR, under its own standards, did consider the two men as holding “safety-sensitive” jobs, and were subject, under LIRR policy, to drug testing upon return to work after an absence of 30 days or more. The FRA has no such requirement.
LIRR spokesman Aaron Donovan said “the results in these cases represent a safety hazard — an area in which the MTA will never compromise.”
The LIRR’s corporate policy on alcohol and drugs prohibits all workers from “possessing or using any illegally obtained controlled substance on or off duty.”
“They sit there and say, ‘We’re concerned with safety, but we only test them when they’re not working,’” said Ricardo Sanchez, general chairman of the IBEW Local 589, which represents LIRR electricians. “And now marijuana is legal, so it doesn’t matter what the railroad thinks. It doesn’t matter what I think. It’s a matter of law.”
In their lawsuit, filed in March, Dolginko and the IBEW asked the U.S. District Court to stop the LIRR “from asking, suggesting or requiring an employee in a non-safety sensitive position to submit to a drug and/or marijuana test, as a condition to returning to work following a medical leave of absence.”
Neil Kaufman, a Hauppauge attorney specializing in cannabis law, said the LIRR’s policy appears to be “in direct violation” of state law prohibiting employers from “taking adverse action” against employees for marijuana use, unless that use was in violation of federal law or caused them to be impaired while working.
Kaufman said the LIRR, like all employers in the state, “need to revisit” their marijuana policies.
“The reality is that a new day has dawned in New York with respect to how employers need to treat employees who use cannabis,” Kaufman said.
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