Want SanWorker Fired For Ducking Drug Test; Back Problem No Excuse
By TOMMY HALLISSEY
An Office of Administrative Trials and Hearings Administrative Law Judge has recommended termination of a Sanitation Worker who refused to report to a clinic for random drug-testing because he was out on seven-day sick leave.

JOHN J. DOHERTY: Will decide SanWorker's fate.

The Sanitation Department's drug-testing unit randomly selected Warren Field for screening on Jan. 15, 2007. The test, which was to be held two days later, never happened because, the department contends, Mr. Field either invented a back ailment or exaggerated it in order to avoid testing.

Called After being Listed AWOL

Mr. Field did not show up for work on the test date and was marked "AWOL, no call, no show." He called in the next day sick from a temporary address in New Jersey. The sick-leave log indicates a 1:10 a.m. call that described complaints of diarrhea, according to the DSNY.

The Sanitation Worker testified that he threw out his back on Jan. 14 and told the department about it two days later. He said he called in sick on the first day of his absence, but after he was already marked AWOL.

On Jan. 16, Deputy Chief Thomas Giovinco, who is in charge of Sanitation's drug-testing unit, called Mr. Field at his temporary residence in New Jersey. After he ordered the worker to report for testing the following day, Mr. Field asked to report on Jan. 18. Chief Giovinco declined that request, prompting Mr. Field to ask about the ramifications of a missed test.

The two dispute what was said about the worker's illness. Mr. Field testified that he told Chief Giovinco that he was in pain and that he might be able to handle the clinic steps if given a one-day extension. Chief Giovinco did not recall any conversations about the worker's back, only about diarrhea. If Mr. Field could not travel, he was told to supply the clinic with a doctor's note documenting his inability to travel to the clinic.

Doctor's Note Not Sufficient

Mr. Field never showed up for the drug testing, but did fax a note from his doctor just after 7 a.m. on Jan. 17. The note said he had acute back strain, which would keep him out of work for seven days.

Dr. Remy Obas testified that he considered the note "unacceptable" and "insufficient," because it did not say that Mr. Field was unable to travel and because the department is very stringent in granting medical condition excuses for employees from drug testing. He testified that except for an "acute condition that is almost catastrophic" and that requires "hospitalization or constant care for the employee," that person is required to come to the clinic for a urine specimen. Dr. Obas said that if Mr. Field were able to travel to his doctor's office on Jan. 16, he should have been able to travel to the clinic the next day for a drug test.

Mr. Field's wife, Awilda, testified that she asked her husband to move an armoire Jan. 14; as a result, his back "went out." The Sanitation Worker testified he was in "serious pain ... something where the sensation just runs up your back and it freezes you ... you just can't move." He described the pain as a "12" on a scale of 1 to 10.

Overslept and 'Couldn't Move'

He initially took over-the-counter medication and never went to the emergency room. He tried to set an alarm for 4 a.m. the next morning, but he did not wake up until 4 p.m. because he set the alarm wrong. Mr. Field called in sick after his shift was over at 5 p.m.

He testified, "I couldn't even move, I couldn't even roll off the bed, I couldn't even tilt sideways. Any slight movement I was in pain."

Mr. Field walked into the HIP Center for an emergency walk-in appointment. "I looked like Frankenstein where I couldn't even move," he testified. He left with a prescription and a doctor's note, which did not specify that Mr. Field could not travel. The Sanitation worker said he faxed a second note regarding his inability to travel, but it was never received, according to the department.

Later the DSNY accepted the second letter but discounted it because Mr. Field was able to travel to the doctor to get the note. He was found to have skipped the drug test because he did not submit sufficient documentation of his inability to appear.

In her recommendation, ALJ Faye Lewis noted it was the third time that Mr. Field violated the drug-testing directive. "This tribunal has consistently recommended termination of employment in such instances even where, as here, a number of years has elapsed since the last violation," she wrote.

Sanitation Commissioner John J. Doherty has yet to make a final determination in Mr. Field's case.