Random drug testing a bona fide job requirement for trucking company doing business in U.S.: Arbitrator
Rick McLean, a driver for Lambeth, Ont.-based trucking company Allied Systems for nearly eight years, was terminated after failing his third random drug test for marijuana use. He had not been disciplined after the first positive test, but after the second one he was suspended and warned another positive test would prove fatal to his employment. The warning seemed straightforward enough and the outcome, when he failed a third test, was unsurprising. However, the situation wasn’t as clear-cut as it appeared.
In Canada, mandatory random drug testing for all employees in a safety sensitive workplace is not considered a reasonable exercise of management rights. Random testing may be done only if expressly negotiated, if there is reasonable cause, if there has been an incident justifying it or if it is part of a rehabilitation program. Canadian rules are based on the fact random tests for marijuana and other drugs may show evidence of past use but not necessarily present impairment.
Company operating in U.S. must follow U.S. regulations
However, the rules at Allied Systems did not fall under the Canadian approach. Allied did much of its business in the United States, primarily in runs to Detroit transporting cars and light trucks from assembly plants to dealers. In the mid-1990s, the company, in consultation with the Canadian Human Rights Commission, introduced a random drug and alcohol testing program which used U.S. Department of Transportation regulations. The union did not challenge this policy but accepted it as a “bona fide occupational requirement” for drivers who had to cross the U.S. border to do their work.
By his own admission, McLean was a recreational user of marijuana. He tested positive in a May 2001 random drug test but was not disciplined. However, U.S. regulations required he be taken out of service, assessed by a substance abuse professional, pass a return-to-duty drug test and undergo random follow-up tests. He passed a subsequent test in July 2001.
McLean was turned back at the border again in December 2004 and during his attempts to remedy his situation with the border authorities — he argued it was a case of mistaken identity — he drove only in Canada. Allied, nevertheless, kept him in its drug testing pool and he tested positive for marijuana on Feb. 8, 2006. He was suspended for 10 days and warned any further positive test would result in termination. That is what happened after a third test on May 15, 2006, was positive.
Union argued worker shouldn’t have been tested
The union argued against his termination on several grounds. First of all, it said since he was not working in the U.S., he should not have been in the drug testing pool in the first place. It also said that despite the fact everyone agreed McLean was not dependent on marijuana, Allied treated him as if he were addicted. The fact that Allied mandated a follow-up drug test — even though there was no evidence he was ever impaired on the job — meant it was treating him as having a problem with substance abuse where none existed. This “perceived disability” should have triggered accommodation, which would have kept him from having to cross the border, the union said.
Finally, the union said too much time had elapsed between the first failed drug test in 2001 and the second in 2006. Under the sunset clause for discipline in the collective agreement, any record of discipline for breaking the rules was removed after one year unless an accident was involved. Allied said there was no reference to drug testing in the list of infractions under the sunset clause and therefore it did not apply, but the arbitrator ruled the list comprised examples only, not a “complete code of all culpable conduct.” Although the company was obliged by U.S. regulations to keep a record of drug test results for five years, this did not exempt the company from expunging the record for its own disciplinary purposes after one year.
The arbitrator found the ability to work in the U.S. was a condition of employment since so many runs were made there and both Allied and McLean thought it was only a matter of time before he would be cleared for work by U.S. officials. Additionally, the union did not grieve the 10-day suspension after the second positive drug test, thereby giving its tacit agreement that he should be in the pool. Moving employees in and out of the drug testing pool would be impractical for scheduling work, the arbitrator said, and it was reasonable to keep McLean in the pool for testing.
The arbitrator also found that compliance with U.S. regulations for all drivers was a “justified occupational requirement.”
A choice between the job and his habit
Despite his findings, the arbitrator gave McLean another chance. Noting there was never any indication he was impaired while on duty or any complaint about the performance of his duties, the arbitrator said McLean’s behaviour was “at the low end of the culpability scale.” However, as he was expected to cross the border to do his work, he had to choose between abiding by the U.S. regulations and using marijuana. If McLean advised the company within six months that he was ready for another follow-up drug test, and that test proved negative, he would be reinstated. If not, he would relinquish his claim to his job.
Since McLean did not attend the arbitration hearing to argue in his own defence, he may thereby have indicated his choice.
For more information see:
•Allied Systems (Canada) Company and Teamsters Local Union 938 (March 28, 2008), Lorne Slotnick – Sole Arbitrator (Can. Arb. Bd.).
Lorna Harris is the assistant editor of CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
In Canada, mandatory random drug testing for all employees in a safety sensitive workplace is not considered a reasonable exercise of management rights. Random testing may be done only if expressly negotiated, if there is reasonable cause, if there has been an incident justifying it or if it is part of a rehabilitation program. Canadian rules are based on the fact random tests for marijuana and other drugs may show evidence of past use but not necessarily present impairment.
Company operating in U.S. must follow U.S. regulations
However, the rules at Allied Systems did not fall under the Canadian approach. Allied did much of its business in the United States, primarily in runs to Detroit transporting cars and light trucks from assembly plants to dealers. In the mid-1990s, the company, in consultation with the Canadian Human Rights Commission, introduced a random drug and alcohol testing program which used U.S. Department of Transportation regulations. The union did not challenge this policy but accepted it as a “bona fide occupational requirement” for drivers who had to cross the U.S. border to do their work.
By his own admission, McLean was a recreational user of marijuana. He tested positive in a May 2001 random drug test but was not disciplined. However, U.S. regulations required he be taken out of service, assessed by a substance abuse professional, pass a return-to-duty drug test and undergo random follow-up tests. He passed a subsequent test in July 2001.
McLean was turned back at the border again in December 2004 and during his attempts to remedy his situation with the border authorities — he argued it was a case of mistaken identity — he drove only in Canada. Allied, nevertheless, kept him in its drug testing pool and he tested positive for marijuana on Feb. 8, 2006. He was suspended for 10 days and warned any further positive test would result in termination. That is what happened after a third test on May 15, 2006, was positive.
Union argued worker shouldn’t have been tested
The union argued against his termination on several grounds. First of all, it said since he was not working in the U.S., he should not have been in the drug testing pool in the first place. It also said that despite the fact everyone agreed McLean was not dependent on marijuana, Allied treated him as if he were addicted. The fact that Allied mandated a follow-up drug test — even though there was no evidence he was ever impaired on the job — meant it was treating him as having a problem with substance abuse where none existed. This “perceived disability” should have triggered accommodation, which would have kept him from having to cross the border, the union said.
Finally, the union said too much time had elapsed between the first failed drug test in 2001 and the second in 2006. Under the sunset clause for discipline in the collective agreement, any record of discipline for breaking the rules was removed after one year unless an accident was involved. Allied said there was no reference to drug testing in the list of infractions under the sunset clause and therefore it did not apply, but the arbitrator ruled the list comprised examples only, not a “complete code of all culpable conduct.” Although the company was obliged by U.S. regulations to keep a record of drug test results for five years, this did not exempt the company from expunging the record for its own disciplinary purposes after one year.
The arbitrator found the ability to work in the U.S. was a condition of employment since so many runs were made there and both Allied and McLean thought it was only a matter of time before he would be cleared for work by U.S. officials. Additionally, the union did not grieve the 10-day suspension after the second positive drug test, thereby giving its tacit agreement that he should be in the pool. Moving employees in and out of the drug testing pool would be impractical for scheduling work, the arbitrator said, and it was reasonable to keep McLean in the pool for testing.
The arbitrator also found that compliance with U.S. regulations for all drivers was a “justified occupational requirement.”
A choice between the job and his habit
Despite his findings, the arbitrator gave McLean another chance. Noting there was never any indication he was impaired while on duty or any complaint about the performance of his duties, the arbitrator said McLean’s behaviour was “at the low end of the culpability scale.” However, as he was expected to cross the border to do his work, he had to choose between abiding by the U.S. regulations and using marijuana. If McLean advised the company within six months that he was ready for another follow-up drug test, and that test proved negative, he would be reinstated. If not, he would relinquish his claim to his job.
Since McLean did not attend the arbitration hearing to argue in his own defence, he may thereby have indicated his choice.
For more information see:
•Allied Systems (Canada) Company and Teamsters Local Union 938 (March 28, 2008), Lorne Slotnick – Sole Arbitrator (Can. Arb. Bd.).
Lorna Harris is the assistant editor of CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
