Drug and alcohol policies no cure without union input

By Lorna Harris
|Canadian HR Reporter|Last Updated: 09/04/2003

All collective agreements contain a so-called “recognition clause” in which management’s right to set policies, make and alter rules and regulations and generally manage the workplace is clearly acknowledged.

The employer’s actions must, however, be reasonable, consistent with the collective agreement, and abide by general laws such as the Human Rights Code.

In a recent case before an Ontario arbitration board, the union argued management had overstepped its bounds. In several important respects, the arbitrator agreed.

The issue concerned the writing and implementation of a drug and alcohol policy at a chemical plant — a workplace that was inherently very dangerous.

Safety had been a priority for both the union and management for a long time.

In fact, 10 years had elapsed without a single lost-time injury on the job, and the company had recently won a safety excellence award from its professional association and there had been no accident at the plant attributable to drug or alcohol abuse.

To continue this commendable record, management put together a team to formulate a drug and alcohol policy which would be applied at all its plants across Canada — both union and non-union. The team included representatives from just about every area in the organization — except the union.

This was atypical as relations between employer and employees had been “unusually co-operative.”

The policy was announced to the union two days before it came into effect. Union representatives balked at its contents calling them “ambiguous, intrusive, invasive, discriminatory, arbitrary, unfair, unnecessary and unreasonable.” Clearly the union was not happy. In fact, it wanted the policy struck down entirely.

It objected to what it saw as management’s lack of respect for the collective agreement and for the union in dealing with health and safety issues. It said that a problem with drug and alcohol abuse should be shown to exist before imposing such a policy, and it opposed the various forms of drug testing and the rules for searches as set out in the policy.

The company contended there was no portion of the collective agreement that obliged it to involve the union in setting policy, especially when that policy involved the entire corporation in unionized and non-unionized plants alike. It argued that, in such an inherently dangerous industry, being proactive around safety was both sensible and necessary. It also defended its unannounced random testing procedures and searches, noting those with drug-related problems would be accommodated in rehabilitation efforts.

The arbitrator clearly upheld the company’s unassailable right to “make rules respecting the operation of its business.” The fact it did not consult the union did not breach any provision of the collective agreement. Nor did there need to be “an express authorization in the collective agreement” for the company to institute a policy involving testing for drugs and alcohol.

As to whether there had to be a proven drug or alcohol problem before a policy could be implemented, the arbitrator pointed out that, as all the employees were in highly “safety sensitive positions,” the company had every right to be proactive in its policy-setting.

She also noted that the “weight of the jurisprudence,” which had grown up around the issue of drug testing in safety sensitive workplaces, endorsed the company’s right to do reasonable cause testing. Furthermore, in a safety sensitive workplace, reasonable drug and alcohol testing that revealed a disability in the form of addiction or dependency did not violate the Human Rights Code by discriminating unfairly against a person so afflicted.

However, the arbitrator drew the line at several other parts of the policy.

The arbitrator found it unreasonable that testing positive for drugs could result in termination, as could refusal to submit to a test. The arbitrator noted the presence of a drug in the system did not establish a just cause for discipline because it “cannot prove work-related impairment.” Also, if a drug test were about to be administered, an employee could justifiably argue there was not a just cause and refuse to take it. The arbitrator said this should not result in termination.

Not only that, but if in fact the drug test did show a positive result and a possible drug dependency, the arbitrator pointed out the proper course of action according to the Human Rights Code of Ontario would be to accommodate the disability, not dismiss the employee. The company doctor stated the policy hadn’t intended these draconian results, and the arbitrator ordered the wording be amended to reflect a more reasonable reading.

Next, the arbitrator considered the situation where an employee had tested positive for drugs and would then be subjected to unannounced monitoring for two years following the offence. Was this a reasonable use of management’s rights in a safety sensitive workplace?

The arbitrator found random testing was an unwarranted infringement on the privacy of an employee except in the following situations: in non-addicted employees whose use of drugs impaired their ability to work; in addicted employees; and in those employees in rehabilitation. In respect to the latter two situations, she added, “the focus of the company in overseeing the wellness of an employee in the process of behaviour modification or rehabilitation appropriately shifts from ensuring the employee is not working under the influence of drugs or alcohol to ensuring the employee in question is not using drugs or alcohol at all.”

The arbitrator emphasized the union must be fully involved with the rehab process and with the drug and alcohol testing, which would be a part of the process. She went on to remind the parties that the company was obliged to negotiate terms and conditions of employment with the union as the exclusive bargaining agent, a requirement which was all the more significant in setting down the terms of a return-to-work agreement or a last chance agreement.

The company could not impose random testing on an employee without first ensuring the full participation of the union in the whole process. But neither could the union neglect its responsibility to accommodate under the Human Rights Code. It could not reasonably withhold its participation in the writing of a return-to-work agreement.

The policy said the employer could unilaterally terminate an employee for testing positive during the monitoring period, a provision the arbitrator found was unreasonably broad.

Next, the arbitrator ruled unannounced searches in the employees’ lockers, bags, purses and other personal places were too broad and must be governed by more specific wording about the employer’s having reasonable grounds to suspect banned substances would be found.

Finally, the arbitrator ruled an employee could be escorted from the premises not solely because of a positive drug test, which might show merely past use, but only in the case of a positive test and impairment.

Given the modifications ordered by the arbitrator, it is tempting to speculate on the nature of the policy had the union been involved from the get-go. Six years of turmoil and expense might have been avoided if the company had made sure the union was represented in the process of devising the policy.

For more information: Dupont Canada Inc., Maitland Site and the Communications, Energy and Paperworkers Union of Canada, Ontario Labour Code Arbitration, Pamela Cooper Picher – Chair and Robert J. Gallivan and John More – Nominees, March 28, 2002.

Lorna Harris is the assistant editor of

CHRR

’s companion publication

CLV Reports

, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or lorna.harris@carswell.com.

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