'He was employed at such a safety-sensitive workplace where the default position is one of dismissal'
“Cannabis is not as predictable as alcohol and it's not linear in its impacts on the human body - that's why, when you're trying to uphold discipline, you often need an expert to provide an opinion on why we care about impairment and the signs of impairment.”
So says Justin Turc, a labour and employment lawyer at McCarthy Tétrault in Calgary, after an Alberta arbitrator upheld the dismissal of a railway worker who tested positive for cannabis after supervisors observed signs of impairment.
The worker was employed as a brakeperson for the Canadian Pacific Kansas City Railway (CPR) since 2008. The position was considered a safety critical one.
CPR had a drug and alcohol policy that banned the use of cannabis for 28 days before reporting for duty.
On Feb. 26, 2021, the worker was early into his shift when he said that his “head was not in the game” and he asked to go home. His co-workers agreed that he should go.
Observed signs of impairment
The worker met with the assistant superintendent and the trainmaster. The trainmaster documented his observation that the worker was “not himself, as he typically is alert and coherent,” he was agitated, and he had a nervous shake.
The assistant superintendent observed that the worker was talking rapidly and loudly, he was restless and boisterous, and he didn’t make eye contact. The worker said that he was having a hard time at home and he didn’t feel safe working.
The assistant superintendent didn’t know the worker, so confirmed with the trainmaster that this behaviour wasn’t normal. They ordered the worker to submit to a drug test on the grounds of reasonable suspicion of impairment.
CPR acted appropriately by having two people make observations of the worker and compare notes to confirm that the worker was acting strangely, says Turc.
“That’s a good practice to have, where two different individuals met with him prior to sending him for testing and they both observed behavior that could form a basis for reasonable suspicion,” he says. “This is also an unusual case in that the employee basically self-selected out – usually, reasonable suspicion cases are when a supervisor observes something out of the ordinary, but here not only did it attract the supervisor’s attention, but all his co-workers too, and then the worker himself was wanting to go home.”
Positive drug test
The worker took an oral fluid test that came back negative. However, a urinalysis test came back positive for marijuana at almost eight times the cut-off concentration in CPR’s alcohol and drug policy. At the testing site, the worker told staff that the legalization of cannabis was a “windfall” because he used it regularly.
CPR investigated and the worker admitted to using marijuana three to four times per week and he last used the drug about 11.5 hours before reporting for duty. He explained that he was facing stress from being a single father during the pandemic and he had recently broken up with his girlfriend. He insisted that he wasn’t trying to avoid the test when he tried to leave, but rather he was having a panic attack and was seeking medical attention.
CPR relied on a 2019 report by a medical expert on cannabis impairment, which indicated that THC - the primary psychoactive element of cannabis - can “impair cognitive functions” such as decision-making, memory, and judgment, particularly in novel or emergency situations. The report also stated that people can be affected acutely by marijuana for four to 12 hours and can continue to be residually impaired on neurocognitive testing for several more hours.
The expert also said that the significant risk of residual impairment from off-duty use upon the return to work was “a concern in safety-critical and safety-sensitive workplaces.” Such residual effects were “unpredictable and non-linear, differentiating cannabis from alcohol,” said the expert.
Termination of employment
In March, CPR terminated the worker’s employment for being impaired at work.
The union grieved, arguing that CPR could not use impairment as a reason for dismissal because it didn’t refer to Rule G of the Canadian Rail Operating Rules (CROR), which prohibits the use of and impairment from intoxicants and narcotics by rail workers subject to duty. It also said that the worker was fired for his positive urinalysis result, which has been proven to be not enough on its own to justify dismissal.
The union also argued that CPR didn’t have reasonable suspicion to test the worker and the investigation wasn’t fair or impartial.
The arbitrator noted that the worker was given the opportunity to describe what and to refute management’s observations. It was appropriate for the investigator to ask questions relating to the facts and the worker wasn’t protected from “self-incriminating” questions, which didn’t make the investigation unfair or impartial, the arbitrator said.
“There's a right under a collective agreement for the union to attend investigation meetings, but their role is to listen, observe, and provide guidance to the employee - they're not there to protect the employee from having to answer appropriate questions,” says Turc. “The union seemed to object to the fact that CPR was asking questions that were ‘unfair’ in the sense that they went to this individual’s drug use, but those are fair questions if what's being investigated is the worker's fitness for work and contravention of a [drug and alcohol] policy.”
Obligation to not be impaired
The arbitrator found that it didn’t matter that CPR didn’t refer to Rule G of the CROR, because the existence of that rule didn’t change the fact that railway employees are not to be impaired on the job under any circumstances. The obligation to report to work not impaired “is fundamental to the employment relationship,” said the arbitrator.
The arbitrator noted that drug testing under certain and limited circumstances was one way the employer in a safety-sensitive workplace can establish impairment and, in the balance between employee privacy and the employer’s interest in a safe workplace, it has been established that impairment, not drug use itself, tips the balance and provides cause for discipline.
The arbitrator found that the positive urinalysis test was not the sole reason for discharge. The assistant superintendent and trainmaster both had reasonable suspicion based on their observations of the worker’s “cognitive, emotional, and behavioural responses” and the concerns of the worker’s colleagues that his “head was not in the game” – also acknowledged by the worker himself, the arbitrator said, adding that the worker’s explanations didn’t explain the “unusual signs and symptoms” he displayed, which were “consistent with the residual impact of marijuana use.”
The expert’s report was helpful because it showed that there was a risk of impairment that can be detected through urinalysis, can last for a long time, and be unpredictable, says Turc.
“[The expert] also tied the behavior that management saw to what you would expect someone who's impaired from cannabis to be exhibiting,” he says.
Regular cannabis user
The arbitrator also noted that the worker was an acknowledged chronic cannabis user and he admitted to using marijuana just over 11 hours before the start of his shift. The worker also tested positive for eight times the policy’s cutoff level, which along with his behaviour, was sufficient to find that the worker had residual impairment at work, said the arbitrator, noting that even the worker himself recognized that he was unable to perform his safety critical functions.
The arbitrator determined that the worker, on a balance of probabilities, was impaired at work, giving CPR cause for discipline. Since impairment was one of the most serious offences in the railway industry, the worker voluntarily consumed marijuana before work, and he didn’t show any remorse – his description of legalization as a “windfall” showed a lack of insight into the seriousness of risking impairment at work - and the only mitigating factor was his 12.5 years of service, the arbitrator agreed that termination was appropriate.
“The signs and bizarre behavior were consistent with impairment and there was no other reasonable explanation such as medication, disability, or diagnosis that the worker advanced,” says Turc. “The arbitrator really had no other conclusion to draw than that [the worker’s] symptoms were because of residual impairment.”
“And then the impairment was in the context of working at a railway company, which is historically viewed as one of the most safety-sensitive workplaces that exist, where the potential for disaster is huge,” adds Turc. “The expert report and the observations were what led to the conclusion that this individual was impaired, and he was employed at such a safety-sensitive workplace where the default position is one of dismissal - you need some convincing facts to support a position that dismissal is not appropriate in the circumstances.”
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Persoage), Re, (Dec. 5, 2023), Docket 4845-M (Can. Railway Office of Arb. & Dispute Res.).
