‘One-size-fits-all’ followup testing at Ontario employer not quite right (Legal View)

Concept reasonable but must allow for individualized treatment: Arbitrator

An Ontario employer’s drug policy that specified random followup testing for employees returning to work after impairment at work was reasonable, but needed to be clarified so not all such employees were treated the same, an arbitrator has ruled.

The employer had a drug and alcohol policy that was intended to provide a safe workplace for employees and anyone else affected by the employees. The policy allowed employees who had tested positive for drugs or alcohol to return to work with followup tests. 

Once an employee who had previously tested positive obtained a negative test result, she was required to comply with unannounced and random followup testing. 

This involved “at least six tests in the first 12 months following the employee’s return to the workplace,” said the policy. 

The policy also stipulated “a substance abuse professional (SAP) can terminate the requirement for the followup testing at any time, if the SAP determines that the testing is no longer necessary.”

Under the drug and alcohol policy, employees who refused to take a test were treated the same as employees who tested positive, which meant they were subject to the return-to-work protocol that involved visits with an SAP and followup testing.

The employer used SAPs who were medical doctors and had experience treating individuals with substance abuse. They helped determine if an employee who tested positive was a casual, recreational user or an abuser through factors such as the employee’s work performance, absences, observations of co-workers and missed days of work. 

Once that was determined, SAPs recommended a course of treatment, the amount of followup testing and the period of time the employee should be tested after a return to work.

Worker questioned
One particular worker in a safety-sensitive position was observed by his supervisor acting and looking in certain ways that made the supervisor suspect he was under the influence of drugs. The supervisor ordered the worker to take a drug test, but the worker refused, saying he knew he would test positive because he had recently smoked marijuana. 

The worker was discharged and the union filed a grievance against the return-to-work provisions of the policy.

The union argued that treating employees who refused the test as if they had a positive test subjected them to “disproportionate and excessive employee drug and/or alcohol testing.” Since the policy itself noted that testing should only be done with “reasonable grounds,” followup testing should be treated the same way to protect employee privacy rights, said the union.

The union also claimed the testing protocol required employees to abstain from activities in their off-duty time that had no bearing on their job performance or workplace safety, for up to 12 months.

The employer responded that return-to-work testing wasn’t random in that not just any employee was tested at any time, but rather only specific employees who had already tested positive. In addition, if an employee didn’t have a serious problem, the SAPs would see that and had the right to terminate the requirement for followup testing under the policy.

Arbitrator weighs in
The arbitrator noted it had been established in earlier decisions that testing for reinstatement was intended to ensure employees in safety-sensitive positions were not impaired on the job and employers were allowed to conduct unannounced testing of employees returning to work in a safety-sensitive workplace, where there was “reasonable cause to believe that their addiction or use of alcohol or drugs has had or could have an impact on the workplace.”

While the worker’s refusal to take a test wasn’t the same as a positive test, said the arbitrator, it meant he wasn’t assessed by an SAP and the employer had no evidence of whether the use was recreational user or more serious. All the employer had to go on was the supervisor’s suspicion the worker was impaired, which provided reasonable cause for the employer to suspect impairment that could affect the workplace. 

Under the policy, this was reason to demand testing and the reason a refusal was treated the same as a positive test result — a violation of the policy, said the arbitrator.

“The employees who violate the policy have, because of the ‘reasonable grounds’ threshold in the policy, exhibited reasonable cause to believe that their use of alcohol or drugs has had or will have a direct impact on the workplace,” said the arbitrator. “These are not employees who are being randomly selected for testing, in the sense of being arbitrarily selected from all or some portion of the workforce. While their testing may be unannounced and unscheduled, it is not being imposed without reason or without a basis of legitimate concern.”

However, the policy’s description of the return-to-work testing process was vague and somewhat contradictory, found the arbitrator. The policy stipulated employees must comply with unannounced followup testing involving up to six tests in a 12-month period, with no apparent limits on how long testing may be required, but also said an SAP could decide to terminate the testing if it was deemed no longer necessary.

The employer argued the policy allowed for an individualized assessment of each situation by an SAP, noted the arbitrator, but “the current wording of the policy does not clearly convey the promise of individualized treatment.” 

Without individualized treatment, the policy did not ensure reasonable and non-discriminatory treatment for all violations of the policy and, therefore, didn’t comply with the Ontario Human Rights Code.

For example, someone who arrived at work “hungover from an atypical night of indulgence” would be treated to the same followup process as an employee who was addicted to an illegal drug, based on the wording of the policy. 

This “one-size-fits-all” approach was problematic, said the arbitrator.

The concept of the followup testing under the employer’s drug and alcohol policy was reasonable, said the arbitrator, but the wording should be amended to indicate employees would be given individualized assessments by an SAP that would be unique to each employee’s situation. 

This would avoid discrimination and unnecessary violations of privacy through unnecessary testing.

“Because of these problems and ambiguity about what is expected or required in ‘the first 12 months,’ the wording of the return-to-work followup test cannot be considered to be reasonable until and unless it is clarified to be less prescriptive and more individualized, so that it does not imply or prescribe a minimum time or frequency of testing or suggest that everyone who violates the policy will be treated as a substance abuser,” said the arbitrator.

“In other words, the wording of the policy should match what the employer submits as its intention — that is, to treat all individuals according to their specific circumstances.”

For more information see:
•Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 CarswellOnt 1824 (Ont. Arb.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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