Right idea, wrong application for drug, alcohol policy ( Legal View)

Requiring medical evaluations goes too far: Board
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 08/15/2011

A British Columbia employer’s drug and alcohol abuse policy is a good approach to dealing with employee substance abuse problems but goes too far in demanding medical examinations, the B.C. Arbitration Board has ruled.

Rio Tinto Alcan Primary Metal operated an aluminum smelter in Kitimat, B.C. The company had an occupational health department (OHD) that provided medical and health services to employees and also reviewed reports from family physicians and specialists for leaves and return-to-work programs.

Rio Tinto was concerned about employee substance abuse during work hours due to several instances in which employees were entered into rehabilitation programs. Between 2004 and 2010, the company saw about 10 employees per year receive treatment.

The company felt it needed a new approach to employee drug and alcohol abuse as the old system didn’t address a problem until the point of termination for misconduct. When this happened, the employee had to sign a contract to attend treatment and be monitored for a period of time when back at work.

In 2005, to get the attention of employees with problems before it was too late, Rio Tinto developed a new policy with an attendance management program and levels of discipline below termination. In 2008, it started using outside addiction specialists to assist in deciding discipline and employment contracts for these employees. For employees returning to work after completing a substance abuse program, OHD would provide counselling and recommendations to avoid a relapse.

In March 2010, Rio Tinto developed an official policy that stated it would provide treatment to employees with substance-dependence problems. It made clear any “medically unauthorized substance” used or possessed by employees was prohibited at the workplace. If employees had a problem or if colleagues suspected co-workers might have a problem that could affect the safety of the workplace, they were to report it to OHD.

As well, if any employee appeared to be impaired while on the job, supervisors were required to remove the employee and arrange for a medical evaluation, after which the employee could only return if cleared by OHD.

The new policy stipulated certain circumstances where an employee “may be required to participate in a medical evaluation” — after an incident or near miss, where there was “reasonable cause,” a return-to-work program after substance dependence and returning after a voluntary absence for treatment. It defined a medical evaluation as “a set of medical procedures” by a doctor or registered nurse that could include various examinations.

The union filed a grievance arguing the medical evaluations in the policy were, essentially, independent medical examinations of employees done without their consent and they should only be a last resort. The union was also concerned employees who refused to undergo a medical examination were subject to discipline, particularly since “reasonable cause” wasn’t defined in the policy. The union also noted certain parts of the policy referred to a zero tolerance towards drugs and alcohol, while other parts mentioned just cause.

The board noted Rio Tinto had the right as an employer to introduce unilateral rules and policies, as long as they were consistent with the collective agreement. However, it was concerned with the policy’s outline of reasons for medical examinations, which listed several circumstances but didn’t limit it to those circumstances. Since employees could be disciplined for not consenting to an examination, this gave the employer “considerable discretion over when a medical evaluation is required,” said the board.

The board also took issue with the fact the policy indicated supervisors without medical training were to decide if a medical examination was necessary. It agreed with the parts of the policy that required drug and alcohol testing where there was reasonable cause — such as workplace accidents or near misses — but the requirement for medical examinations further broadened the reason of potential impairment.

Having the policy look for other reasons of impairment was commendable if it involved voluntary participation, said the board, but employees had to consent to examinations under threat of discipline, possibly dismissal. In particular, if Rio Tinto had reasonable cause to suspect impairment and the employee passed a drug and alcohol test, the employee could still be subject to discipline if the employer believed there was another reason for impairment and wanted a medical evaluation.

“Where the policy intrudes into areas of private medical information, without any issue of alcohol or drugs, and makes a refusal to participate or disclose that information, a disciplinary offence is unreasonable,” said the board.

The policy was also inconsistent on having a zero tolerance approach, found the board. The policy stated possession or use of an unauthorized substance would result in “immediate termination” but, in another article, indicated violation of the policy could be the basis “to impose discipline in accordance with the legal principle of just cause.” The board also noted zero tolerance was contrary to the collective agreement and the Labour Relations Code.

The board ruled the medical evaluation requirements and zero tolerance provisions in Rio Tinto’s substance abuse policy were unreasonable and allowed the union’s grievance, in part.

“The effort to assist employees towards recovery is commendable and it may be important to individuals, their families as well as the employer,” said the board. “However, if rehabilitation is an objective of the policy, it may also raise the issue of whether an employee can be compelled to participate in rehabilitation under pain of discipline.”

For more information see:

Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2011 CarswellBC 353 (B.C. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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