Canadian HR Reporter

CANADIAN HR REPORTER March 21, 2016 EMPLOYMENT LAW 5 Jeffrey Smith Legal View ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS. With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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(prices subject to change without notice) Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation (416) 498-7800 ext. 1 www.resourcecorporation.com COMPENSATION CONSULTING 'One-size-fits-all' followup testing at Ontario employer not quite right Concept reasonable but must allow for individualized treatment: Arbitrator An Ontario employer's drug policy that speci- fied random followup testing for employ- ees returning to work after impairment at work was reasonable, but needed to be clarified so not all such employees were treated the same, an arbitrator has ruled. e employer had a drug and al- cohol policy that was intended to provide a safe workplace for em- ployees and anyone else affected by the employees. e policy al- lowed employees who had tested positive for drugs or alcohol to re- turn to work with followup tests. Once an employee who had previously tested positive ob- tained a negative test result, she was required to comply with un- announced and random followup testing. is involved "at least six tests in the first 12 months following the employee's return to the work- place," said the policy. The policy also stipulated "a substance abuse professional (SAP) can terminate the require- ment for the followup testing at any time, if the SAP determines that the testing is no longer necessary." Under the drug and alcohol policy, employees 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 followup testing. e employer used SAPs who were medical doctors and had ex- perience treating individuals with substance abuse. ey helped de- termine if an employee who tested positive was a casual, recreational user or an abuser through factors such as the employee's work per- formance, absences, observations 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 af- ter a return to work. Worker questioned One particular worker in a safety- sensitive position was observed by his supervisor acting and looking in certain ways that made the su- pervisor suspect he was under the influence of drugs. e supervisor ordered the worker to take a drug test, but the worker refused, say- ing 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 subject- ed them to "disproportionate and excessive employee drug and/or alcohol testing." Since the policy itself noted that testing should only be done with "reasonable grounds," followup testing should be treated the same way to protect employee privacy rights, said the union. e union also claimed the test- ing protocol required employees to abstain from activities in their off-duty time that had no bearing on their job performance or work- place safety, for up to 12 months. e employer responded that return-to-work testing wasn't random in that not just any em- ployee was tested at any time, but rather only specific employees who had already tested positive. In addition, if an employee didn't have a serious problem, the SAPs would see that and had the right to terminate the requirement for followup testing under the policy. Arbitrator weighs in e arbitrator noted it had been established in earlier decisions that testing for reinstatement was intended to ensure employees in safety-sensitive positions were not impaired on the job and em- ployers were allowed to conduct unannounced testing of employ- ees returning to work in a safety- sensitive workplace, where there was "reasonable cause to believe that their addiction or use of al- cohol or drugs has had or could have an impact on the workplace." While the worker's refusal to take a test wasn't the same as a positive test, said the arbitrator, it meant he wasn't assessed by an SAP and the employer had no evi- dence of whether the use was rec- reational user or more serious. All the employer had to go on was the supervisor's suspicion the worker was impaired, which provided reasonable cause for the employer to suspect impairment that could affect the workplace. Under the policy, this was rea- son to demand testing and the reason a refusal was treated the same as a positive test result — a violation of the policy, said the arbitrator. "The 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 work- place," said the arbitrator. "ese are not employees who are being randomly selected for testing, in the sense of being arbitrarily se- lected from all or some portion of the workforce. While their test- ing may be unannounced and un- scheduled, it is not being imposed without reason or without a basis of legitimate concern." However, the policy's descrip- tion of the return-to-work testing process was vague and somewhat contradictory, found the arbitra- tor. The policy stipulated em- ployees must comply with unan- nounced followup testing involv- ing 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 employer argued the policy allowed for an individualized as- sessment of each situation by an SAP, noted the arbitrator, but "the current wording of the policy does not clearly convey the promise of individualized treatment." Without individualized treat- ment, the policy did not ensure reasonable and non-discrimina- tory treatment for all violations of the policy and, therefore, didn't comply with the Ontario Human Rights Code. For example, someone who arrived at work "hungover from an atypical night of indulgence" would be treated to the same fol- lowup process as an employee who was addicted to an illegal drug, based on the wording of the policy. This "one-size-fits-all" ap- proach was problematic, said the arbitrator. e concept of the followup testing under the employer's drug and alcohol policy was reason- able, said the arbitrator, but the wording should be amended to in- dicate employees would be given individualized assessments by an SAP that would be unique to each employee's situation. is would avoid discrimina- tion and unnecessary violations of privacy through unnecessary testing. "Because of these problems and ambiguity about what is expected or required in 'the first 12 months,' the wording of the return-to- work followup test cannot be considered to be reasonable until and unless it is clarified to be less prescriptive and more individual- ized, so that it does not imply or prescribe a minimum time or fre- quency of testing or suggest that everyone who violates the policy will be treated as a substance abuser," said the arbitrator. "In other words, the wording of the policy should match what the employer submits as its in- tention — that is, to treat all indi- viduals according to their specific circumstances." For more information see: •Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 Car- swellOnt 1824 (Ont. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. "e wording of the return-to-work test cannot be considered reasonable until it is clarified and individualized."

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