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7 Canadian HR Reporter, a Thomson Reuters business 2016 tion or use of alcohol or drugs has had or could have an impact on the workplace." The arbitrator found that while the worker'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 seri- ous. All the employer had to go on was the supervisor's sus- picion that the worker was im- paired, which provided reason- able cause for the employer to suspect impairment that could affect the workplace. Under the policy, this was reason to de- mand 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 reason- able cause to believe that their use of alcohol or drugs has had or will have a direct impact on the workplace," said the arbitra- tor. "These are not employees who are being randomly se- lected for testing, in the sense of being arbitrarily selected from all or some portion of the work- force. While their testing may be unannounced and unsched- uled, it is not being imposed without reason or without a ba- sis of legitimate concern." Vague wording of policy caused confusion However, the arbitrator also found the policy's description of the return-to-work testing process was vague and some- what contradictory. The policy stipulated that employees must comply with unannounced fol- low-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. The arbitrator noted that the employer argued that the policy allowed for an individualized assessment of each situation by an SAP, but "the current word- ing of the policy does not clearly convey the promise of individu- alized treatment." Without indi- vidualized 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. For example, the arbitrator noted that someone who ar- rived at work "hung-over from an atypical night of indulgence" would be treated to the same fol- low-up process as an employee who was addicted to an illegal drug, based on the wording of the policy. This "one size fits all" approach was problematic, said the arbitrator. The arbitrator found that the concept of the return-to-work follow-up testing under the em- ployer's drug and alcohol policy was reasonable, but the wording should be amended to indicated employees would be given in- dividualized assessments by an SAP that would be unique to each employee's situation. This would avoid discrimination and unnecessary violations of priva- cy 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 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 violates the policy will be treated as a substance abuser," the arbitrator said. "In other words, the wording of the pol- icy should match what the em- ployer submits as its intention, that is, to treat all individuals according to their specific cir- cumstances." For more information see: • Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 CarswellOnt 1824 (Ont. Arb.). ing the worker to use an artificial appliance, any subsequent injury resulting from the malfunction of the artificial appliance being worn is deemed to be within the worker's entitlement." The policy document indi- cated that an injury occurring outside the workplace wouldn't warrant entitlement unless it came from the malfunction of an artificial appliance, and gave an example of a worker with an artificial leg slipping while walk- ing as not entitled to benefits. However, it also said entitlement for a secondary condition would be accepted if there was a causal link between the condition and the work-related injury. The tribunal found there was some ambiguity in the policy and the appeal resolution of- ficer rejected the worker's ap- peal because his injury occurred outside the workplace. However, the tribunal felt the policy should be interpreted in a way that was consistent with the "general principle that workers sustain- ing secondary conditions that are directly causally linked to the work-related injury are entitled to benefits to compensate for new injuries." In this case, the worker's fall was not due to reasons unre- lated to the workplace injury, but due to the condition he was in because of the workplace in- jury, said the tribunal. To find otherwise would "have a dispro- portionately negative impact on the workers with the most severe injuries, namely, amputations requiring prosthetic limbs." "In my view, a restrictive in- terpretation of the provision would potentially create the ab- surd situation that a worker with a less severe injury, such as a soft tissue injury to the right knee, may be entitled to benefits for overuse of the left knee, whereas a worker with a traumatic am- putation requiring a prosthetic limb is not entitled to benefits for a fall related to lack of bal- ance caused by the prosthetic limb," said the tribunal. The tribunal found that pros- thetic limbs resulting from work-related injuries should be considered secondary condi- tions of the work-related injuries and falls that are caused by such artificial appliances should be treated as related to the original injury. The worker's appeal was allowed and his claim for ben- efits from his February 2013 fall was granted. As for the overpayment of the worker's independent living allowance, the tribunal found there was no indication the worker could have reasonably been aware of the error. The WSIB policy manual stipulates that the WSIB does not pursue the recovery of a benefit-related debt if it's the result of an admin- istrative error and the recipient couldn't reasonably have known about it. Therefore, the over- payment from the duplicated cheques was not recoverable and the WSIB should not have made a deduction from the worker's benefit payments. For more information see: • Decision No. 71/16 (May 6, 2016), R. McCutcheon V-Chair (Ont. Workplace Safety & Appeals Trib.). Prosthetics < pg. 6 One size < pg. 5 Lack of balance from prosthetics related to injury Not all positive tests should be treated the same News | September 2016 | CSR e worker's fall was outside the workplace but the condition he was in because of the workplace injury contributed to the fall: Tribunal

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