Driver’s ‘shy bladder’ defense doesn’t hold water

July 19, 2016

Employment Law BookAn employee’s failure to provide a legitimate excuse for not complying with a drug test justified her termination.

A school bus driver subject to random drug testing failed to produce a urine sample during a test. Subsequently, the testing facility arranged for – and the driver agreed to – a “shy bladder examination.”

The doctor performing the examination found “no clinical evidence for decreased urination.”

(Westlaw users: Click here for the Labor Arbitration Information System.)

Based on that finding, the company discharged the driver, as her failure to produce a sufficient urine sample was considered a “refusal” under the contractual drug policy.

The grievant underwent a second SBE performed by her personal physician who certified that she indeed suffered from shy bladder syndrome, suggesting that any future urine test take place in the morning.

In addition to the opinion of the woman’s doctor, the union challenged her discharge on the basis of her long, discipline-free work record as well as the company’s failure to utilize progressive discipline for a first-time offense.

The arbitrator upheld the termination.

First Student Inc. and IBT Local 249, 44 LAIS 141, 2015 WL 10382314

After reviewing the medical evidence and testimony – including the driver’s “evasive” statements about purported urination problems during previous tests – the arbitrator deemed the opinion of the treating physician insufficient to overturn the diagnosis of the doctor who performed the first SBE.

Addressing the union’s progressive discipline claim, the arbitrator found the labor agreement provided for suspension or termination, without prior warning, for a test refusal and that management adhered to governing federal regulations, which mandated the woman’s removal from her safety-sensitive position.

Finally, the lack of a non-safety-sensitive position into which the grievant could be placed meant that the company had just cause to terminate her employment, the arbitrator said.