Testing positive for marijuana not always cause for termination

After failing a random drug test, a tractor-trailer owner-operator was fired from Canadian National Transportation Limited — but an arbitrator has reversed that decision.

Following the termination, the National Automobile, Aerospace, Transportation and General Workers Union of Canada grieved, arguing the company did not have reasonable cause to conduct the drug test in the first place — and that it violated the worker’s rights under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.

The worker was employed under contract by the CNTL, and as such, was subjected to a random drug screening on Nov. 8, 2012. She failed.

The worker did not dispute the positive finding for marijuana, instead saying she had unknowingly ingested the marijuana in baked goods that were served to her at a party.

But she was fired anyway.

While random drug and alcohol testing is not legally sanctioned for companies operating in Canada, Canadian transport companies that want to operate in the United States must develop and maintain drug and alcohol testing policies that comply with the U.S. Department of Transport (DOT) regulations. DOT regulations mandate random drug and alcohol tests for transport workers.

In the past, there have been attempts to reconcile the clash between Canadian human rights and U.S. regulations.

For example, the Canadian Human Rights Commission recognizes that a company’s ability to operate in the U.S. — and maintain a drug and alcohol-testing regime that meets DOT requirements but which necessarily violates Canadian law — may be considered to be a bona fide occupational requirement.

As well, some employers — either voluntarily or through collective bargaining — have allowed some workers to avoid the application of DOT requirements by refusing to work in the U.S.

In some cases, the right to refuse U.S. work has been managed as a grandfathered right available to workers with seniority but not as an option for new hires.

Such was the case at the CNTL.

The staffer had never operated in the U.S. However, as she was hired after Jan. 28, 2007, she was required to be eligible and available for cross-border assignments as a condition of her employment.

"Upon a review of the facts, the arbitrator is satisfied that the company did not violate any provision of the collective agreement nor of any Canadian law to the extent that it required its employees who are subject to travelling into the United States to be subject to American drug testing rules, including random alcohol and drug testing," the decision states.

"While the general rule of application may be different as regards random alcohol and drug testing for employees in safety sensitive work whose employment is performed entirely in Canada, the specific legal obligations and the liability of the instant employer, operating as it does a common carrier service into the United States, did make it subject to American drug testing rules promulgated by the U.S. Department of Transport, which included the requirement to randomly alcohol and drug test employees subject to possible assignment into the U.S."

So the test was not improper, the arbitrator concluded. However the disciplinary response in the circumstances was excessive — there were mitigating factors that weighed in the worker’s favour.

One factor in her favour was that she was open and candid with the employer at all times and admitted to consuming marijuana (although she was initially unaware of what she had done).

Moreover, there was no evidence to challenge her assertion that she had no history of knowingly consuming marijuana, nor was there any evidence to suggest she had ever been impaired — either by drugs or alcohol — while on duty.

"In the result, I am satisfied that this is an appropriate case for the exercise of the arbitrator’s discretion to reduce the penalty assessed against the grievor, albeit subject to conditions fashioned to protect the employer’s legitimate interests."

The arbitrator turned the termination around, and the worker was reinstated without loss of seniority. However, she was not compensated for lost wages or benefits.

The employee was required to accept random alcohol and drug testing for two years following reinstatement, and the next time, a positive test or a failure to make herself available for a test could result in termination.

Reference: Canadian National Transportation Limited and National Automobile, Aerospace, Transportation and General Workers Union of Canada. Michel G. Picher — Sole Arbitrator. B. Kennedy for the Union. R.Bateman for the Employer. May 17, 2013. 7pp.