Canadian Safety Reporter - sample

5 Canadian HR Reporter, a Thomson Reuters business 2016 5 Canadian HR Reporter, a Thomson Reuters business 2016 News | September 2016 | CSR 'One size fits all' follow-up testing no good: Arbitrator Employer's follow-up testing for employees returning to work after testing positive for drugs or alcohol was reasonable but must allow for individualized treatment BY JEFFREY R. SMITH AN ONTARIO employer's drug policy that specified random follow-up testing for employees returning to work after impair- ment at work was reasonable, but needed to be clarified so not all such employees were treated the same, an arbitrator has ruled. The employer had a drug and alcohol policy that was intended to provide a safe workplace for employees and anyone else af- fected by its employees. The policy allowed employees who had tested positive for drugs or alcohol to return to work with follow-up tests. Once an em- ployee who had previously test- ed positive obtained a negative test result, she was required to comply with unannounced and random follow-up testing. This 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 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, 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 follow-up testing. The employer used SAPs who were medical doctors and had experience treating individu- als with substance abuse. They helped determine if an em- ployee who tested positive was a casual, recreational user or an abuser through factors such as the employee's work perfor- mance, absences, observations of co-workers, and missed days of work. Once that was deter- mined, SAPs recommended a course of treatment, the amount of follow-up testing, and the pe- riod 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 looking in certain ways which made the supervisor suspect the work- er was under the influence of drugs. The supervisor ordered the worker to take a drug test, but the worker refused, saying he knew he would test positive because he had recently smoked marijuana. The worker was dis- charged and the union filed a grievance against the return-to- work provisions of the policy. The union argued that treat- ing employees who refused the test as if they had a positive test subjected them to "dispropor- tionate and excessive employee drug and/or alcohol testing. Since the policy itself noted that testing should only be done with "reasonable grounds," follow- up testing should be treated the same way to protect employee privacy rights, said the union. The 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. The 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 em- ployees who had already tested positive were subject to random tests. In addition, if an employ- ee didn't have a serious prob- lem, the SAPs would see that and had the right to terminate the requirement for follow-up testing under the policy. The arbitrator noted that it had been established in earlier deci- sions that testing for reinstate- ment was intended to ensure employees in safety sensitive po- sitions were not impaired on the job and employers were allowed to conduct unannounced testing of employees returning to work in a safety sensitive workplace, where there was "reasonable cause to believe that their addic- Credit: Shutterstock/ProStockStudio Not all > pg. 7 Substance abuse professionals could evaluate whether the employee had a serious problem and could terminate the requirement for follow-up testing.

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