The same was true for the Department of Transportation regulations. They similarly did not mandate termination if an employee, even one in a safety-sensitive position, tested positive once or twice. The regulations left that decision up to the employer and mandated only the immediate removal of employees who tested positive from their safety-sensitive positions. Those regulations also encourage employers to include rehabilitation as part of their drug testing programs. Eastern s drug testing policy did not have the right provisions.
Employers can establish policies that require discharge following one or two positive tests.
They can obviously negotiate labor contract provisions saying the same thing. Indeed, Justice Ginsberg commented during oral argument that Eastern should go back to the bargaining table and negotiate a contract clause stating if you test positive for drugs twice, you re out. Non-union employers can take the reinstatement remedy away from an arbitrator by a similar policy. Arbitrators are creatures of contract. They only have the authority the parties give them.