Canadian Occupational Safety

DECEMBER/JANUARY 2019 17 provincial occupational health and safety legisla- tion to provide a safe workplace and have policies that allow it to do that," Kaardal says. "Employers argue that every time. The judge has said yes, but we have to balance that against the privacy interest." In 2012, Suncor Energy in Alberta introduced a random drug and alcohol testing policy for all employees in safety-sensitive positions working in the oil sands. The company justified the policy by pointing to a "general problem of substance abuse." The union, Unifor Local 707A, filed a grievance on the grounds that the policy was an invasion of the workers' privacy and won an injunction that prevented Suncor from going ahead with random testing. The arbitration board concluded Suncor's testing policy was unreasonable, stating the harm to the privacy rights of the workers caused by the random testing policy outweighed the safety ben- efit to the employer. The arbitration decision was then overturned on appeal on the grounds the arbitration panel had confined their discussion to union members and had dismissed Suncor's claims of a substance abuse problem among employees as a whole. The case was sent back to a fresh arbitration panel for adjudication, so a final decision has not yet been made. The Toronto Transit Com- mission (T TC) began randomly testing employees for drug and alcohol use in May 2017 after the Ontario Superior Court dis- missed an application by the union, Amalgamated Transit Union Local 113, for an injunc- tion. As justification for allowing testing to continue, the judge stated the T TC's workplace was essentially the entire city of Toronto and thus, in addition to workers and passengers, there was a wider public safety concern, which outweighed workers' privacy interests. The union went back to arbitration to try to overturn the testing policy. In early 2018, an arbitrator ruled against Van- couver, B.C.-based Teck Coal, which in 2012 had implemented a mandator y random drug and alcohol testing program at its mining sites. The arbitrator agreed with the union, the United Steel- workers, and concluded the employer's use of random testing to be unreasonable in a balancing of privacy rights and safety. In these cases, all involving unionized work- places, the employers would have had the right to conduct random testing if it had been agreed to as part of a negotiated collective agreement with the union. Testing would then have been voluntary. "Where there is no drug-testing policy agreed to under the collective agreement, the issue then is: Does the employer have a right, because of their duty to have a safe workplace, to put in random drug testing? So far, the indication is no, unless they meet the requirements of the Irving case, which are very hard to meet," Kaardal says. UPDATING POLICIES Every company with safety-sensitive jobs should have a clearly written drug and alcohol policy. It should include a section outlining the employer's rights in relation to a cannabis testing program. The Tolko Industries case, among others, shows how employers can point to a worker's breach of their drug and alcohol policy, rather than evidence of impairment, to justify discipline following a positive drug test. Before revising a drug and alcohol policy, an employer should get legal advice, says Jan Chap- pel, senior technical specialist at the Hamilton, Ont.-based Canadian Centre for Occupational Health and Safety. The legal side of testing is very complicated. "It involves human rights commissions, union contracts, occupational law, privacy, safety, labour standards, a whole bunch of factors involved in being allowed to test in the first place. We really recommend employers consult a law yer with knowledge in this area before they get too far in that process," she says. Moreover, where a worker is dependent on cannabis, a testing policy may be considered dis- criminatory on the basis of disabilities and thus a violation of human rights legislation, she adds. Its use should be limited to safety-sensitive positions. All aspects of a policy dealing with impairment and drug testing should be discussed and agreed on between management and workers or their rep- resenting union. Policies should clearly set out procedures the company will follow: When testing will occur, who will be tested and how. "Some places test as you enter the facility, which is common more in oil production; others will do it post-incident; others will do it under different cir- cumstances. The parameters must be laid out clearly so people know what to expect," Chappel says. With no legal definition of impairment, the com- pany should use the drug policy to state what it considers to be impairment and how impairment will be identified. What THC level is considered evidence of inability to perform a job? What phys- ical signs will managers be trained to consider symptoms of impairment? "There will generally be a supervisor who has to make an evaluation of the individual at that point. We use what we call the 'fit to work' model. Does the person have the ability to do their job or task safely on that day, at that hour? Whether it's driving, operating machinery, using sharp objects, making critical decisions, they need to make an assessment of whether the person is able to do that at that time," Chappel says. The employer should also state what actions, including discipline, will be taken when the test results come back and how the company will ensure worker confidentiality. It should also out- line return-to-work requirements for workers who tested positive and cover accommodation policies for workers with an addiction. Additionally, the policy should tell workers how to use the workplace reporting process should they believe a co-worker may be impaired. The education and training the company intends to provide to work- ers and managers should also be outlined. While there are still many issues around can- nabis testing to sort out and there will likely be a rise in the number of legal challenges, some to do with the validity of testing, Kaardal thinks the controversy around cannabis testing will settle out. "With respect to the workplace and safety, we have general impairment factors to look at. And arbitrators are going to say, 'We're concerned about the safety of the workplace and, given the evidence of those two witnesses that the person seemed impaired, it was appropriate to ask the worker to leave the workplace.'" Linda Johnson is a freelance journalist based in Toronto, who has been writing for COS for seven years. Source: Workplace Strategies: Risk of Impairment From Cannabis (3 rd Edition), Canadian Centre for Occupational Health and Safety Employers and supervisors should be able to identify signs of impairment and know how to respond to situations. All actions should be handled with empathy and without judgement. Here are some steps to take: Where there's been a serious incident or near-miss and we, the employer, have reason to believe because of the way this person was behaving that impairment was involved, we will be allowed to test you. That's called 'cause' testing. • Speak to the employee in private. • Have a witness present. • Remove any stigma regarding substance use. • State the concern is about safety. • Ask for an explanation. • Discuss the options. • If applicable, notify senior management and the union representative. • Provide information on your employee assistance program. • Do not allow the employee to drive if you suspect impairment. • Follow procedures for accommodation, if necessary. • Follow your organization's policies on progressive discipline, if required.

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