Positive drug test not cause for dismissal (Legal view)

Rail worker given job back despite testing positive for marijuana following incident

A railway worker in British Columbia 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 Canadian National Railway Company (CNR) in Weslang, B.C. On Nov. 5, 2007, he 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 involved in an argument with Johnson. During the dispute, the foreman claimed, Johnson approached him with his telephone and pushed it into his face.

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,” any medication that could affect an employee’s ability to work safely “subject to duty” or possession while on duty.

Johnson was fired on Dec. 10, 2007. His employer 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 the move 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. So if he wasn’t impaired while working, he didn’t breach the policy.

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 an employee’s 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 is a good way to show the presence of drugs in a person’s body, but it can’t measure current impairment.

While there were cannabinoids in his system, the arbitrator found there was no evidence of the active component of marijuana when he took the test. Since Johnson admitted he had used 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,” said the arbitrator.

There is a “balance” between the employer’s interest in a safety-sensitive workplace and the privacy of employees, said the arbitrator, and drug testing can serve a purpose in detecting drug use. However, 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 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 that disclose no job-related misconduct,” said the arbitrator.

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.).

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

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