Worker admitted to smoking marijuana on weekend but it was still in his system two days later at work
A British Columbia railway worker has been given his job back after an arbitrator ruled he shouldn’t have been fired for failing a post-incident drug test.
Michael Johnson worked as a track maintainer for the Canadian National Railway Company (CNR) in Weslang, B.C. On Nov. 5, 2007, Johnson was overseeing the safety of track work when he saw a boom crane interfering with the track. While talking to the crane operator, the foreman of the contracted construction company came over and got into an argument with Johnson. During the argument, the foreman claimed, Johnson approached him with his telephone and pushed it into his face.
Company required post-incident drug test
The foreman filed a complaint and the next day Johnson’s supervisor discussed the incident with him. The matter was treated as an incident and, under company policy, Johnson was required to undergo a post-incident drug test through urinalysis.
Johnson complied with the test but told his supervisor the test would probably be positive because he had smoked marijuana two days earlier on the weekend. The test proved him right, as he tested positive for cannabinoids.
CNR conducted a disciplinary investigation and concluded Johnson broke its drug and alcohol policy, which prohibited the use of “intoxicants or narcotics” and any medication that could affect the ability to work safely by employees “subject to duty” or their possession while on duty. Johnson was fired on Dec. 10, 2007. CNR indicated he had not been disciplined for the altercation with the foreman, but for the breach of the drug policy.
The union grieved Johnson’s termination, saying it was unjust and excessive discipline. It said the positive urinalysis drug test didn’t prove he was impaired, only that he had used marijuana sometime in the recent past and there were still traces of it in his system. If he wasn’t impaired while working, he didn’t breach the policy.
Employer cited safety concerns from ‘potential’ impairment
CNR said the test showed marijuana was still present in his system so he was “likely still under the influence of that illegal drug.” His willingness to go to work while still “potentially impaired” presented an “intolerable” risk to safety. The policy, CNR argued, didn’t allow for any presence of drugs in the system while on duty.
The arbitrator referred to the Ontario Court of Appeal’s approach to urinalysis in Entrop, which supported the union’s argument that urinalysis was a good way to show the presence of drugs in a person’s body and past tense, but it couldn’t measure current impairment.
The arbitrator found though there were cannabinnoids in his system, there was no evidence of active THC when he took the test. Since Johnson admitted he had use marijuana two days earlier, it was unlikely he was impaired.
“The arbitrator can see no credible link between the consumption of marijuana on a Saturday and impairment or likely impairment at the registering of a positive drug test the following Tuesday,” the arbitrator said.
The arbitrator acknowledged there is a “balance” between the employer’s interest in a safety-sensitive workplace and the privacy of employees and drug testing can serve a purpose in detecting drug use. However, the arbitrator said, a positive test is not sufficient in itself to be grounds for termination. CNR said it wasn’t disciplining Johnson for the altercation with the foreman but rather solely for the positive drug test that violated the drug policy.
“(A positive drug test) should not result in the termination of an employee in circumstances which disclose no job-related misconduct,” the arbitrator said.
If CNR was truly worried about impaired employees threatening workplace safety, it should use a better indicator of impairment, rather than urinalysis, which is more likely to show past use, the arbitrator said.
“There is existing technology which would allow the employer to test for actual impairment,” the arbitrator said. “Taking that approach would appear to avoid any controversy about impairment.”
Johnson’s termination was deemed excessive discipline and CNR was ordered to reinstate him with compensation for lost wages, benefits and seniority.
For more information see:
•Canadian National Railway Company v. U.S.W.A. (Local 2004), 2008 CarswellNat 3280 (Can. Arb. Bd.).
Michael Johnson worked as a track maintainer for the Canadian National Railway Company (CNR) in Weslang, B.C. On Nov. 5, 2007, Johnson was overseeing the safety of track work when he saw a boom crane interfering with the track. While talking to the crane operator, the foreman of the contracted construction company came over and got into an argument with Johnson. During the argument, the foreman claimed, Johnson approached him with his telephone and pushed it into his face.
Company required post-incident drug test
The foreman filed a complaint and the next day Johnson’s supervisor discussed the incident with him. The matter was treated as an incident and, under company policy, Johnson was required to undergo a post-incident drug test through urinalysis.
Johnson complied with the test but told his supervisor the test would probably be positive because he had smoked marijuana two days earlier on the weekend. The test proved him right, as he tested positive for cannabinoids.
CNR conducted a disciplinary investigation and concluded Johnson broke its drug and alcohol policy, which prohibited the use of “intoxicants or narcotics” and any medication that could affect the ability to work safely by employees “subject to duty” or their possession while on duty. Johnson was fired on Dec. 10, 2007. CNR indicated he had not been disciplined for the altercation with the foreman, but for the breach of the drug policy.
The union grieved Johnson’s termination, saying it was unjust and excessive discipline. It said the positive urinalysis drug test didn’t prove he was impaired, only that he had used marijuana sometime in the recent past and there were still traces of it in his system. If he wasn’t impaired while working, he didn’t breach the policy.
Employer cited safety concerns from ‘potential’ impairment
CNR said the test showed marijuana was still present in his system so he was “likely still under the influence of that illegal drug.” His willingness to go to work while still “potentially impaired” presented an “intolerable” risk to safety. The policy, CNR argued, didn’t allow for any presence of drugs in the system while on duty.
The arbitrator referred to the Ontario Court of Appeal’s approach to urinalysis in Entrop, which supported the union’s argument that urinalysis was a good way to show the presence of drugs in a person’s body and past tense, but it couldn’t measure current impairment.
The arbitrator found though there were cannabinnoids in his system, there was no evidence of active THC when he took the test. Since Johnson admitted he had use marijuana two days earlier, it was unlikely he was impaired.
“The arbitrator can see no credible link between the consumption of marijuana on a Saturday and impairment or likely impairment at the registering of a positive drug test the following Tuesday,” the arbitrator said.
The arbitrator acknowledged there is a “balance” between the employer’s interest in a safety-sensitive workplace and the privacy of employees and drug testing can serve a purpose in detecting drug use. However, the arbitrator said, a positive test is not sufficient in itself to be grounds for termination. CNR said it wasn’t disciplining Johnson for the altercation with the foreman but rather solely for the positive drug test that violated the drug policy.
“(A positive drug test) should not result in the termination of an employee in circumstances which disclose no job-related misconduct,” the arbitrator said.
If CNR was truly worried about impaired employees threatening workplace safety, it should use a better indicator of impairment, rather than urinalysis, which is more likely to show past use, the arbitrator said.
“There is existing technology which would allow the employer to test for actual impairment,” the arbitrator said. “Taking that approach would appear to avoid any controversy about impairment.”
Johnson’s termination was deemed excessive discipline and CNR was ordered to reinstate him with compensation for lost wages, benefits and seniority.
For more information see:
•Canadian National Railway Company v. U.S.W.A. (Local 2004), 2008 CarswellNat 3280 (Can. Arb. Bd.).
