NY Appeals Court Uphold FDNY Zero Tolerance Policy for EMS

Last week, a New York appellate court upheld the right of FDNY to terminate EMS personnel who refuse to submit to or fail a required drug test.

The case, in re Lillian Roberts v. City of New York, arose out of a challenge by the EMS workers’ union who sought to have the city’s “zero tolerance policy” invalidated because it was not negotiated.

The challenge was brought by Lillian Roberts, Executive Director of District Council 37, an affiliate of American Federation of State, County and Municipal Employees (AFSCME). Back in 2011, the New York City Board of Collective Bargaining ruled against District Council 37’s petition to find the city guilty of an “improper practice”… aka… an unfair labor practice. The Board ruled that the policy did not have to be negotiated. The Supreme Court for New York County affirmed the Board’s ruling District Council 37 appealed to the Supreme Court Appellate Division.

FDNY has had a drug testing policy for EMS personnel as far back as 1999. The policy was updated and a zero-tolerance policy implemented in 2007. Here is the Appellate Divisions’s ruling and its reasoning:

• It is well-settled that New York's Taylor Law … requires collective bargaining over all terms and conditions of employment
• There is no question that New York has a strong policy of supporting collective bargaining, and a presumption exists that all terms and conditions of employment are subject to mandatory bargaining
• This presumption can be overcome, however, where there exists clear legislative intent to remove an issue from mandatory bargaining…
• For example, the Court of Appeals has repeatedly held that the policy favoring strong disciplinary authority for those in charge of police forces prevails over the Taylor Law where legislation has expressly committed such discipline to local officials…. The Court held that the disciplinary matters at issue were a prohibited subject of collective bargaining because the Legislature had vested disciplinary authority over police officers with the Police Commissioner.
• The danger to patients, the public and other workers arising from EMS workers being under the influence of illegal drugs is amply supported by the record before the Board. The City presented expert testimony to support its conclusion that the use of illegal substances can substantially interfere with an EMS worker's ability to perform critical safety-sensitive tasks.
• it is critical to ensure that EMS workers, who are in close proximity to medications, including controlled substances, do not themselves use illegal substances. And the risk of driving an ambulance at high speeds while under the influence of drugs needs no elaboration
• The Court of Appeals recently reiterated that a public employer cannot be compelled to bargain over "inherent[] and fundamental[] policy decisions relating to the primary mission of the public employer" …
• FDNY's interest in ensuring that its EMS workers are drug-free directly relates to the primary mission of treating and providing transport for sick and injured citizens and ensuring that EMS workers do so safely.
• These employees' due process rights, however, are not abrogated completely by the challenged policy because they still are entitled to a hearing on any charges arising from drug testing, and to appeal any finding of guilt.

After the ruling, Roberts was quoted as saying: "We believe our members are entitled to full due process which includes having an independent hearing officer make that determination about the appropriate penalty."

Here is a copy of the Appellate Division’s ruling. ie re Roberts v City of New York

More on the story.

What is not fully clarified in the ruling is the apparently limited nature of the union’s challenge and the narrow distinction drawn by the court. According to the ruling the union claimed that the zero-tolerance policy was not negotiated and hence its implementation was an “improper practice”. However, it does not appear (at least from the court’s own words) that the union was challenging the implementation of a new drug testing policy itself.  

That seeming small detail is important. Implementing a new drug testing policy would likely be a mandatory subject for collective bargaining. The court drew a particularly narrow distinction here without fully clarifying its reasoning. One could easily read the court's opinion (not to mention some of the news articles about the ruling) to say that drug testing policies can be implemented unilaterally by a fire department without negotiation – when in reality the court was saying that the decision to make a positive drug test grounds for automatic termination is a management prerogative.

Not having the benefit of seeing the union’s brief, it is hard to tell if the court simply glossed over the union’s position that the entire policy change that took place in 2007 should have been negotiated, or whether in fact the union was only arguing the very narrow question of whether the penalty of mandatory termination needed to be negotiated. Perhaps we will see the issue resurface again before the New York Court of Appeals.