Law Times

Law Times • march 2, 2009 FOCUS Decision 'puts to bed' drug test issue BY GRETCHEN DRUMMIE Law Times A fter years of wrangling over drug and alcohol policies in the workplace, a recent arbitrator's decision has finally "put to bed" the issue of the permis- sibility of post-incident and cause testing, a Toronto lawyer tells Law Times. "[The decision] gives employers the stamp of approval for reason- able cause and post-incident test- ing," says Mike McCreary, a labour lawyer at Watson Jacobs McCreary LLP, who represented the trade unions in a case heard by arbitrator Thomas Joliffe. On Oct. 31, 2008, Joliffe issued an award in an arbitration between Pipefitters Local 663 and the Me- chanical Contractors Association of Sarnia. The Carpenters Local 1256, the Sarnia Construction As- sociation, and the Sarnia Building Trades intervened. The grievance arose as a result of the member contractors of the MCAS imple- menting drug and alcohol policies at the request of their clients in the chemical valley — Imperial Oil and Suncor, McCreary tells Law Times. In short, the parties asked Joliffe to outline the practical meaning of for cause and post-incident testing. "Joliffe accepts that workers at petrochemical sites can be subject to reasonable cause and post-inci- dent testing," says McCreary. "He qualifies this by saying that these two types of tests cannot be used as a guise for random testing. He gives four rules, any one of which, if present, will justify a reasonable cause or post-incident test." The four rules are: 1. on-site behavioral, physical, or verbal demeanor suggesting im- pairment — actual supportable observations; or 2. an incident of "such magni- tude" — a personal injury or meaningful occurrence; or 3. circumstances and observa- tions during an investigation which leads to a legitimate concern impairment was a factor; or 4. a significant accident or in- cident which needs some investigation resulting in a re- alistic suspicion that impair- ment played a role. Joliffe said, "There has to be some on-site behavioral, physi- cal, or verbal demeanor that suggests impairment which is actually supportable by observa- tions," McCreary notes, explain- ing that it's "something different in your behaviour which would trigger — supportable by objec- tive observations — some sug- gestion of impairment." In terms of incident, Joliffe said it "has to be of such mag- nitude as to be meaningful and it has to result in some sort of per- sonal injury or meaningful occur- rence," says McCreary. "Our con- cern was that an employer would say, 'Jane went to use the stapler and she cut her finger, it bled a bit. Oh, she's obviously under the in- fluence, off for a drug test.'" Instead, Joliffe used the term "of such magnitude," says McCreary that "it has to be a meaningful oc- currence, it can't be just an everyday occurrence that happens to people in the workplace. He also said that there has to be some circumstances and observations during an inves- tigation that would lead to a legiti- mate concern that impairment was a factor in the incident." Now, the investigation has to lead to some sort of legitimate concern that impairment was a factor in someone getting injured, says McCreary. "He's saying not alcohol.' Both of the union A recent arbitrator's decision 'gives employers the stamp of approval for reasonable cause and post-incident testing,' says Mike McCreary. every incident leads to the conclu- sion of impairment. And that was something that we were concerned about, that the employer would shuffle everybody who had an in- cident or an accident, in for a drug test." He notes that as far as he knows, the "decision has not yet been used as a springboard for massive drug and alcohol testing. It has the potential to open the door for more drug and alcohol testing, correct. But on the other hand Joliffe has given some pretty clear guidelines about when you can test and when you can't test. So at the end of the day . . . the union was not unhappy with this result." McCreary says both of his clients — the carpenters and pipefitters unions — acted in a "mature" fashion. "They said, 'We're not in favour of people walking around under the influence of drugs or representatives said, 'We want a safe workplace as much as the employer.' But where the union and employer differed was on how to accomplish that. "What was interesting about this case is that both the unions and the employer had a similar interest and that was creating a safe work environment for the public and the members that worked there. We just disagreed on how to achieve that goal. Unions typically look for softer guidelines for drug and alcohol testing and employers have typi- cally argued for firmer guidelines for drug and alcohol testing." Joliffe's decision for the first time has given a specific list of four qualifications or standards an employer has to meet before it tests under the for cause or post-incident heading. "As a general comment he said the testing should be done only with demonstrable justifica- tion based on reasonable and prob- able grounds," says McCreary. "Jo- liffe was critical of policies that have lock-step or automatic testing un- der the heading 'reasonable cause' or 'post-incident.' He emphasized that such policies would result in effect, [in] random testing, which he made clear was not acceptable." Joliffe, he says, "tries, in our view successfully, to put meaning to the terms 'post-incident' and 'for cause' testing. He makes it clear that an employer cannot, under the guise of those two headings, test employ- ees randomly." McCreary says Joliffe also made it clear that "an automatic dis- charge for a positive test was 'un- supportable' and that any policies that have such a clause have to be re-written." He says that with Joliffe's decision "just because somebody returns a positive drug test doesn't mean that person can be automati- cally terminated. He said that drug and alcohol policies that have au- tomatic termination provisions for a positive test are unacceptable. That's significant because a positive drug test doesn't necessarily mean impairment." He notes, for example the worker who smokes marijuana on Saturday night may still have the drug in his system on Monday, but he's not under the influence of the drug. Ultimately, the employer has to prove the worker is impaired while at the place of work. To that end, Joliffe "falls in line with the widely accepted belief that uri- nalysis does not show drug impair- ment." "Joliffe said you can't automati- cally terminate somebody for a failed drug test and until such time as a test comes along that measures impairment at the time of the test, that statement provides employers with a bright line," says McCreary. The decision "is the most recent seminal case on drug and alcohol testing in Canada. Joliffe has done a service to unions and employers by providing a road map for when to test employees, hopefully this ends the litigation on the topic," says McCreary. 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