'Random testing as part of a return to work… has to be prescribed by a medical professional': lawyer
A railway company’s random drug and alcohol testing of a worker following an earlier positive test was illegal and couldn’t be relied upon for dismissal, a federal arbitrator has ruled.
The worker was a locomotive engineer for Canadian Pacific Kansas City Railway (CPKCR) with 28 years of seniority.
CPKCR’s policy and procedures around fitness for duty prohibited the consumption of alcohol while “subject to duty.” The policy also stipulated that employees must report for work “in a condition that enables them to safely and effectively perform their duties” and remain free from the adverse effects of alcohol and drugs, including the after-effects.
The company also had an HR procedure outlining alcohol and drug procedures that banned the use and possession of alcohol while “working, on duty, subject to duty, on company premises and worksites, on company business and when operating company vehicles and moving equipment” along with reporting for work under the effects of alcohol.
In addition to these policies, CPKCR had a ban on cannabis use for 28 days prior to reporting for work.
Post-incident drug test
On March 30, 2022, the worker failed to secure a train and was required to submit to post-incident drug and alcohol testing. A urine test was positive for cannabis, but the oral swab was negative. At the time, management didn’t observe any signs of impairment, but the worker acknowledged to consuming cannabis 16-and-a-half hours before the start of his shift.
The company suspended the worker for 30 days and subjected him to six months of random testing for breaching the cannabis ban. The union grieved the discipline.
On Dec. 4, the worker booked off for 24 hours as of 4:35 a.m. His next scheduled shift was at 3:30 a.m. on Dec. 6 and he knew that because he had booked 24 hours off, he would be at the bottom of the engineer pool if anything came up before then.
Just before midnight on Dec. 4, the worker went to a Christmas party. He had “a few drinks,” staying until about 7 a.m. on Dec. 5 – after the end of his 24-hour rest period.
Later that day, the worker was called in for random drug and alcohol testing and tested positive for alcohol. In an investigation interview, the worker immediately acknowledged that he had attended a party the night before and had “a couple of beers and then went to hard liquor.”
He said that he was aware of the procedure on alcohol and drug use, admitting that he was drinking after the end of the 24-hour rest period he had booked, but he explained that he wasn’t lined up for work Dec. 6 and “if there was even the slightest possibility that I was going to work I wouldn’t have consumed alcohol.”
The worker wasn’t called back to work until 3:30 a.m. on Dec. 6, as he had expected.
Termination for positive alcohol test
CPKCR determined that the worker tested positive for alcohol while subject to duty, breaching the alcohol and drug policy. The company terminated the worker’s employment.
The union filed a second grievance, this time over the worker’s dismissal.
In the first arbitration in July 2024, an arbitrator noted that oral swab testing was considered more accurate than urine testing, and the oral swab from the post-incident test in March 2022 was negative. Based on that and the fact that the worker showed no other signs of impairment, the arbitrator found that the worker wasn’t impaired at the time of testing.
As a result, there was no grounds for the suspension or the six months of random testing, the arbitrator said.
The same arbitrator then addressed the second grievance relating to the worker’s dismissal. As the random testing order and accompanying suspension was deemed unlawful, the arbitrator found that CPKCR couldn’t rely on the results of the random test.
The biggest problem with the return-to-work random testing was that there was no medical assessment on whether it was necessary, says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver.
“Where someone has been off of work because of a substance use disorder, as part of their return-to-work program they might be required to participate in random drug and alcohol testing,” he says.
“The key thing, though, is that, generally, employers can't make that determination - they don't have the medical training - so if there’s to be random testing as part of a return to work, it has to be prescribed by a medical professional, usually an addictions medicine specialist.”
Blanket policy
Hamata notes that this case arose in the context of the railway industry, which is a highly regulated and very specific employment relationship.
“There may be reasons why the company decided to try and do this through policies rather than individual medical assessments, but the problem was that there seemed to be a blanket policy that wasn't tailored to individual employee circumstances in the way that a health-care professional might tailor a return-to-work program,” he says.
CPKCR also sought to rely on the worker’s statements made during the investigation. The arbitrator ruled that, while questions relating to the test itself were inadmissible, the worker's answers about his drinking were permissible as they pertained to potential rule violations.
“The union argued that because the test which gave rise to the investigation was unlawful, all of the investigation was also unlawful, and, interestingly, the arbitrator didn't agree with that,” says Hamata. “[The arbitrator found] that investigations regularly test potential breaches of policies or rules and, even though the precipitating incident was unlawful, what was said during the investigation was still admissible.”
A central issue was whether the worker was “subject to duty” while consuming alcohol, as the company's policies prohibited alcohol consumption by employees who were subject to duty, even if not actively working. The worker argued that he didn’t expect to return to work until Dec. 6 – which turned out to be accurate.
The arbitrator reviewed previous railway arbitration decisions and found the definition of "subject to duty" to be complex and dependent on context. While the worker was technically off rest at 4:35 a.m. on Dec. 5, 2022, his scheduled return to work wasn’t imminent, said the arbitrator in finding that the worker didn’t violate the alcohol and drug policy.
Impairment at work unlikely
The arbitrator noted that there were differing interpretations of "subject to duty" in prior cases. Arbitrators have generally agreed that employees cannot consume alcohol close to their work shifts if it risks impairment during duty, but in this case the worker stopped drinking more than 20 hours before his next call and was unlikely to be impaired when called, said the arbitrator in finding the worker’s dismissal wasn’t justified.
However, employees must exercise caution with alcohol consumption due to the unpredictable nature of duty schedules in the railway industry, the arbitrator added.
Other industries have a hard cut-off before any shift with a specific threshold for where the impairment policy applies, which usually seems to work, says Hamata.
“In the railway industry, this is a negotiated policy with the union, so that, to me, explains why the company hasn't amended its policy to have a more specific threshold and why they're stuck with this ‘subject to duty’ language,” he says. “But if an employer started from scratch, they would be well-advised to have a more specific pre-shift threshold.’”
CPKCR was ordered to reinstate the worker without loss of seniority and compensate him for lost wages and benefits, minus any mitigation.
Case-by-case approach
What CPKCR could have done, that most employers should do, is to take a case-by-case approach to employees returning from a leave as a result of a substance use disorder, says Hamata.
“It's probably not justifiable to take a one-size-fits-all approach, although an employer like a railway operator is in a tough situation because they've got tens of thousands of employees and that means a lot more work for HR folks - but that's what the law requires,” he says. “Medical professionals do sometimes prescribe random testing as part of return-to-work plan, but it should be viewed more as accountability for the person returning rather than a mechanism to try and catch someone out.”
Without medical professionals involved, the best way to implement random testing following a positive test or substance use incident is with the agreement of the union and the employee in a last-chance agreement, adds Hamata.
