Canadian Labour Reporter

that he believed to be alcohol. At the end of the training ses- sion, the superintendent of the shift convened a meeting with the health and safety manager and the safety advisor where they interviewed the worker. The su- perintendent detected the odour of alcohol and observed that the worker was "shaky, flushed, tired and nervous." The worker said that he had had eight beers and two litres of cider the previous night and he was awake until 3 a.m. The superintendent asked the worker to blow in his face and he smelled alcohol, so he ordered drug and alcohol tests under the policy — a urine sample for the former and a breathalyzer test for the latter. The worker and a union shop steward objected to the drug test as there was only the smell of al- cohol, but the superintendent said if the worker refused the drug test it would be deemed to be a posi- tive test. The worker agreed to the test, but under protest. By the end of the meeting, he was very agi- tated. The alcohol test came back negative and the drug test was in- conclusive. The union grieved the requirement for the urine sample, saying it was an invasion of pri- vacy and there was no reasonable cause for it. The arbitrator noted that al- though the worker attended train- ing that day and wasn't scheduled to perform his normal duties, the drug and alcohol policy still ap- plied. The worker was employed in a safety-sensitive position and could have had his schedule changed for the afternoon. He also shouldn't be under the influ- ence of drugs or alcohol when taking part in safety training as it "would be antithetical to the pur- pose of the training," said the arbi- trator. The arbitrator also noted that drug and alcohol testing involves a balance between an employee's right to privacy and the legitimate business and safety concerns of the employer. As a result, there must be reasonable cause — some basis on which alcohol or drug testing can be justified. The arbitrator found that VDC should have considered one of three options: the breathalyzer test for alcohol, the urine sample for drugs, or both. The superintendent errone- ously believed the policy required both tests automatically, but he hadn't been properly trained on it. There was no sign of actual im- pairment and the only concern was the smell of alcohol — the worker's appearance could have been from being hungover and sleep-deprived rather than im- paired, and his agitation was the result of his opposition to being tested. However, management didn't ask questions to determine pos- sible explanations. The arbitrator determined that impairment wasn't proven and there was no assessment as to whether both tests were neces- sary. As a result, the drug test re- quiring a urine sample should not have been conducted. Reference: Vancouver Drydock and Marine Workers and Boilermakers Industrial Union, Local 1. Mark Brown — arbitrator. Chris Leenheer, Carly Stanhope for employer. Richard Edgar, Heather Hoiness for union. June 8, 2020. 2020 CarswellBC 1912 Supervisor wrongly believed two tests should be done B.C. company didn't fully investigate accommodation anxiety was triggered by getting overheated. He provided a medi- cal certificate stating that he was "unable to tolerate warm/hot en- vironments" and he would have to remove himself to cool off at times. On June 17, the worker felt overheated and had an anxiety at- tack. He took more time off and provided a doctor's note recom- mending a graduated return to work in temperature-controlled environments along with a re- turn-to-work assessment that said he should avoid hot areas. The worker told the company that he didn't want to return to the oil- ing department because it was "full of triggers." Zellstoff temporarily assigned the worker to its relief pool, al- though he continued to hold the classification — and higher wage rate — of lubrication mechanic. In October, the worker was diagnosed with anxiety and ago- raphobia and provided medical information stating that "if he is forced to return to his previous job… his current return to work will fail." In 2017, the worker provided a return-to-work report listing ago- raphobia, heat intolerance, and fear of heights that constituted "a lifelong chronic condition that will likely not improve further." This was the first time Zellstroff learned that the worker required permanent accommodation and had a fear of heights. In December, a medium equip- ment operator (MEO) position became available that was within the worker's restrictions, but it was a lower-paying job. Zellstroff offered to accommodate the worker in the MEO job with the lubrication mechanic wage rate for six months, a blended rate for another six months, and then the regular MEO rate. However, the worker felt blind- sided by the pay cut. The company agreed to extend the higher wage rate for another six months. In May 2019, a log yard opera- tor position that was within his restrictions became available with a higher wage than the MEO posi- tion, but the worker didn't apply. The union filed a grievance, claiming the wage reduction was a breach of the duty to accommo- date. The arbitrator found that while it was possible to accommodate an employee with a disability in a lower-paid job, it was only appro- priate if it was the only suitable position in which accommoda- tion was available. In this case, the medical information indicated that the worker couldn't return to normal duties and the worker himself didn't want to return to the lubrication mechanic posi- tion. The arbitrator also found that the worker and the union didn't inquire about modified lubrica- tion mechanic duties until after the wage reduction proposal. However, Zellstoff didn't consider the possibility either. "The concern, from an accom- modation perspective, is that the employer ruled out the possibil- ity of modifying the duties of a lubrication mechanic to meet the [worker's] restrictions with- out ever obtaining or requesting any medical information that ex- pressly addressed and considered whether the duties could be so modified," said the arbitrator. The arbitrator determined that Zellstoff breached its duty to ac- commodate when it assigned the worker to the lower-paid position without first considering accom- modation with modified duties or a similar position in the oiling de- partment. Zellstoff was ordered to pay the worker compensation for the pay reduction, but only until the date the log yard operator posi- tion became available — when the worker didn't apply for it, he didn't live up to his part of the accommo- dation process — plus $2,500 in damages for injury to dignity, feel- ings and self-respect. Reference: Zellstoff Celgar Partnership and Public and Private Workers of Canada, Local 1. Koml Kandola — arbitrator. Nazeer Mitha. for employer. William Clements for union. July 23, 2020. 2020 CarswellBC 1916

• Cover