City of Dayton can’t test for nicotine without unions’ OK, officials say

Nov 10, 2017
A no-smoking sign posted on the entry doors to City Hall. CORNELIUS FROLIK / STAFF

The city of Dayton recently signaled it may want to test its workers for nicotine at some point in the future to try to become a tobacco-free workplace.

But the city cannot simply require most of its workforce to stop smoking or chewing tobacco, because drug testing is negotiated and regulated by union-represented workers’ collective bargaining agreements, union leaders said.

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The city’s largest union just approved a three-year contract, which would need to be reopened and renegotiated if the city wanted to change the terms and conditions of employment of the represented workers, said Ann Sulfridge, president of the AFSCME Local 101.

“They would need to come to the table for that,” she said.

In a message to employees this month, Dayton City Manager Shelley Dickstein said there have not been any policy discussions about making the city a tobacco or nicotine free employer.

“Further, if the city decides to pursue such a policy all employees would be engaged in the discussion prior to any policy changes occurring,” she wrote.

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Last month, the city of Dayton issued a request for proposals from companies that offer drug, alcohol and nicotine testing services for city employees.

The city indicated it wanted companies to respond that could test for nicotine because “city policy changes that are expected to occur during the term of this agreement may mandate future nicotine testing services,” the request states.

The city’s current drug testing agreement expires at the end of the year. The city currently does not test for nicotine.

After this newspaper reported on the request, City Manager Dickstein sent a message to employees saying the city is seeking a five-year contract with a vendor for drug testing services.

The city wanted the vendors who responded to be able “accommodate any anticipated changes” related to the city’s drug policy over the next several years, she said.

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Some members of AFSCME Dayton Public Service Union Local 101 were surprised and concerned to hear that the city was considering testing for nicotine, even though any decision seems to be much farther down the road, Sulfridge said.

“They had mentioned to us they may be interested in this down the road, but I did not realize we are on the road already,” she said.’

But the union’s contract specifically states what substances the city can test workers for.

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DPSU Local 101 just recently ratified a three-year agreement that does not expire until Oct. 31, 2020. But the city and union can come back to the table at any time if they want to try to negotiate work terms or conditions, officials said.

Sulfridge said it’s too early to know if the union’s membership would be willing to accept nicotine testing. The DPSU Local 101 has about 737 members, in clerical and blue-collar units.

Nicotine, unlike alcohol or other drugs the city tests for, does not cause impairment and impact job performance, so forbidding workers from using the substance potentially could be an unreasonable work rule, Sulfridge said.

She said the city as part of its wellness program already provides incentives for smoking cessation, which is a good approach to encouraging healthier behavior.

“To me, that’s the way to pursue it … with the carrot, not the stick,” she said.

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The Dayton FOP Lodge 144 is currently in negotiations for a new collective bargaining agreement, but nicotine testing has not been discussed at all, said Rick Oakley, union president.

The police union’s contract specifies drug testing parameters and procedures.

“To deviate from that would require them to renegotiate our contract,” Oakley said. “I don’t believe it will be a big deal, but maybe they’ll try to do it for new hires or something.”

The discussion around workplace bans on tobacco use begs the question of where to draw the line about lifestyle and healthy living choices, Oakley said.

“If it may be smokers today, maybe it’s overweight, fat guys the next time,” he said.