Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends 6 | March 16, 2016 e policy also stipulated that "a substance abuse professional (SAP) can terminate the requirement for the follow-up testing at any time, if the SAP determines that the testing is no longer necessary." Under the drug and alcohol policy, em- ployees who refused to take a test were treated the same as employees who tested positive, which meant they were subject to the return-to-work protocol that involved visits with an SAP and follow-up testing. e employer used SAPs who were medical doctors and had experience treat- ing individuals with substance abuse. ey helped determine if an employee who tested positive was a casual, recreational user or an abuser through factors such as the em- ployee's work performance, absences, ob- servations of co-workers, and missed days of work. Once that was determined, SAPs recommended a course of treatment, the amount of follow-up testing, and the period of time the employee should be tested after a return to work. A worker in a safety sensitive position was observed by his supervisor acting and look- ing in certain ways which made the supervi- sor suspect the worker was under the influ- ence of drugs. e supervisor ordered the worker to take a drug test, but the worker re- fused, saying he knew he would test positive because he had recently smoked marijuana. e worker was discharged and the union filed a grievance against the return-to-work provisions of the policy. e union argued that treating employees who refused the test as if they had a positive test subjected them to "disproportionate and excessive employee drug and/or alco- hol testing. Since the policy itself noted that testing should only be done with "reason- able grounds," follow-up testing should be treated the same way to protect employee privacy rights, said the union. e union also claimed the return-to- work testing protocol required employees to abstain from activities in their off-duty time that had no bearing on their job performance or workplace safety, for up to 12 months. e employer responded that return-to- work testing wasn't random in that not just any employee was tested at any time, but rather only specific employees who had al- ready tested positive were subject to random tests. In addition, if an employee didn't have a serious problem, the SAPs would see that and had the right to terminate the require- ment for follow-up testing under the policy. e arbitrator noted that it had been es- tablished in earlier decisions that testing for reinstatement was intended to ensure employees in safety sensitive positions were not impaired on the job and employers were allowed to conduct unannounced testing of employees returning to work in a safety sen- sitive workplace, where there was "reason- able cause to believe that their addiction or use of alcohol or drugs has had or could have an impact on the workplace." e arbitrator found that while the work- er's refusal to take a test wasn't the same as a positive test, it meant he wasn't assessed by an SAP and the employer had no evidence of whether he was a recreational user or something more serious. All the employer had to go on was the supervisor's suspicion that the worker was impaired, which pro- vided reasonable cause for the employer to suspect impairment that could affect the workplace. Under the policy, this was rea- son to demand testing as well as the reason a refusal was treated the same as a positive test result — it was a violation of the policy, said the arbitrator. "e employees who violate the policy have, because of the 'reasonable grounds' threshold in the policy, exhibited reasonable cause to believe that their use of alcohol or drugs has had or will have a direct impact on the workplace," said the arbitrator. "ese are not employees who are being randomly selected for testing, in the sense of being ar- bitrarily selected from all or some portion of the workforce. While their testing may be unannounced and unscheduled, it is not being imposed without reason or without a basis of legitimate concern." Vague wording caused confusion However, the arbitrator also found the policy's description of the return-to-work testing process was vague and somewhat contradictory. e policy stipulated that employees must comply with unannounced follow-up testing involving up to six tests in a 12-month period with no apparent limits on how long testing may be required, but also said an SAP could decide to terminate the testing if it was deemed no longer necessary. e arbitrator noted that the employer argued that the policy allowed for an in- dividualized assessment of each situation by an SAP, but "the current wording of the policy does not clearly convey the prom- ise of individualized treatment." Without individualized treatment, the policy didn't ensure reasonable and non-discriminatory treatment for all violations of the policy and therefore didn't comply with the Ontario Human Rights Code. As an example, the arbitrator noted that someone who arrived at work "hung-over from an atypical night of indulgence" would be treated to the same follow-up process as an employee who was addicted to an illegal drug, based on the wording of the policy. is "one size fits all" approach was prob- lematic, said the arbitrator. e arbitrator found that the concept of the return-to-work follow-up testing un- der the employer's drug and alcohol policy was reasonable, but the wording should be amended to indicate employees would be given individualized assessments by an SAP that would be unique to each employee's sit- uation. is would avoid discrimination and unnecessary violations of privacy through unnecessary testing. "Because of these problems and ambi- guity about what is expected or required in 'the first 12 months,' the wording of the return-to-work follow-up test cannot be considered to be reasonable until and unless it is clarified to be less prescriptive and more individualized, so that it does not imply or prescribe a minimum time or frequency of testing or suggest that everyone who vio- lates the policy will be treated as a substance abuser," the arbitrator said. "In other words, the wording of the policy should match what the employer submits as its intention, that is, to treat all individuals according to their specific circumstances." For more information see: • Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 CarswellOnt 1824 (Ont. Arb.). Policy didn't contemplate individualized treatment « from ONE SIZE on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? 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