IN THE MATTER OF AN ARBITRATION UNDER THE LABOUR RELATIONS CODE, R.S.B.C. 1996

BETWEEN:

RIO TINTO ALCAN PRIMARY METAL KITIMAT/KEMANO OPERATIONS B.C.

(the “Employer”)

AND:

NATIONAL AUTOMOBILE, AEROSPACE TRANSPORTATION AND GENERAL WORKERS OF CANADA (CAW-CANADA) LOCAL, 2301

(the “Union”)

Re: Drug and Alcohol Policy Grievance

ARBITRATOR: John Steeves COUNSEL: Kevin O’Neill

for the Employer

Bruce Laughton, Q.C. for the Union

DATE OF HEARING: January 6, 2011 PLACE OF HEARING: Kitimat, B.C. DATE OF DECISION: February 6, 2010

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A. INTRODUCTION

1. This is a decision about the Union’s challenge to the reasonableness of the

Employer’s Drug and Alcohol Policy (the Policy) of March 10, 2010.

2. The Union challenges parts of the Policy, not all of it. First, according to the Union,

the Policy creates "Medical Evaluations" that amount to essentially Independent

Medical Examinations (IME) of employees without their consent. It is recognized that

an IME may be appropriate but only in rare circumstances and as a last resort. The

Policy makes it a first option, according to the Union, and that raises significant issues

about the privacy of employees. A related matter is that the Union submits the

Employer's Occupational Health Department (OHD) is given extensive and

inappropriate authority over employees under the Policy. A second concern of the

Union is that they submit the Policy is problematic because it provides for discipline of

employees who do not undergo a Medical Evaluation under the Policy. Thirdly, the

Union is concerned that the term "reasonable cause" (used in the Policy as a threshold

issue before a Medical Evaluation is required) is not defined or not adequately defined.

3. Finally, the Union is concerned about parts of the Policy that create a "zero

tolerance" approach to drug and alcohol, rather than a just cause approach. This “zero

tolerance” approach is contrary to the collective agreement and the Labour Relations

Code, according to the Union. The Union submits that the offending parts of the Policy

should be struck out.

4. The Employer submits that the Policy is an appropriate and logical response to its

history of trying to deal with employees with drugs and alcohol problems and it is

consistent with the collective agreement and any relevant legislation. The Employer

relies on an expert report that states, among other things, that a focus on Medical

Evaluations, instead of a specific drug or alcohol test, is a more effective approach to

treatment and it is more effective as a general health and safety policy. This is

significant because there is often an overlap between substance abuse and physical and

other conditions. As well, other medical/psychological conditions, unrelated to drugs

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and alcohol, can create safety issues and require evaluation and action. Therefore, a

broad definition of Medical Evaluations is necessary. Further, the Employer relies on

other parts of the Policy that require reasonable cause before evaluations commence.

Specific and appropriate criteria are set out in a checklist for supervisors to use when

deciding reasonable cause, according to the Employer.

5. Overall, according to the Employer, the Policy is less intrusive than an alcohol or

drug test and it is the result of an appropriate balancing of the interests of the Employer

and the interests of employees. The Employer also defends and emphasizes the

importance of its Occupational Health Department for the health and safety of

employees. Finally, the Employer submits that the zero tolerance approach of the Policy

is necessary to deal with drug and alcohol problems in the workplace. The Employer

seeks the dismissal of the grievance.

B. BACKGROUND

6. The Employer operates an aluminum smelter in Kitimat, B.C. and the Union

represents the employees in the smelting operations of the Employer. There is no

dispute that, for the purposes of this arbitration, all bargaining unit positions are safety

sensitive.

7. The Employer provides medical and health services to its employees through an

Occupational Health Department (OHD). The OHD includes two occupational health

nurses as well as a physician. Dr. Lorri Galbraith was the Chief Medical Officer (CMO)

of the OHD from 2006 to 2009 and she testified in this arbitration. She has expertise in

occupational health including a fellowship in 2007 through the Canadian Board of

Occupational Medicine. The CMO position has been vacant since Dr. Galbraith’s

departure in 2009 and the Employer has advertised to replace her.

8. The responsibilities of the OHD include the examination of employees and the

providing of medical advice to employees as well as to the Employer. Among other

things, the OHD medical staff review reports received from the family physicians and

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specialists of employees. They are available to examine employees and provide medical

assistance if an employee voluntarily requests it. Dr. Galbraith estimated that about

twenty percent of her work, when she was the CMO, related to employees with drug and

alcohol problems. The OHD, including the CMO, does not treat employees or prescribe

medication. Records are kept of the various dealings with employees but these are

generally not available to anyone else, including other departments of the Employer.

This is because they are produced as a product of the patient/doctor relationship. The

exception to this is that the OHD will provide advice to other parts of the Employer’s

operations with respect to fitness to work and specific issues such as physical

restrictions affecting the work. However, again, other information such as diagnosis

and treatment are not circulated beyond the OHD. When issues arise during

arbitrations about the health of employees, an order from the arbitrator is necessary to

obtain medical records form the OHD.

9. The issue of substance use and abuse among employees of the Employer has been an

issue for the Employer for some time and it has been the subject of previous arbitration

awards involving discipline and accommodation. Mr. John Hall, a Labour Relations

Consultant for the Employer, testified that for the period 2004 – 2010 there were 59

hourly employees who attended residential treatment for substance abuse. The range of

employees treated was 21 employees in 2007 to 3 employees in 2004, with an average of

9.8 employees. Mr. Hall testified that the Employer’s previous approach to drug and

alcohol problems, before the Policy was introduced in 2010, was essentially an ad hoc

one involving two streams: one through labour relations and the other through OHD.

10. With regards to the first stream, labour relations, in 2004-2005 this usually began

when an employee was at the point of termination because of some misconduct and an

issue of substance abuse was identified at that time. In these circumstances the

employee usually signed an employment contract which included a commitment that he

or she would attend treatment and meet with an Employee and Family Assistance

Program (EFAP) counselor on a regular basis. Upon the successful completion of the

employment contract the employee would return to work and there would be

monitoring every three months. However, according to Mr. Hall, there was no structure

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to this process and it was recognized by both the Employer and the Union that

intervention at the point of termination was too late in the process. In late 2005, the

then CMO developed a drug testing system for the on-site testing of employees. From

that point on, all employment contracts following an incident of drug or alcohol use

included a requirement for random testing.

11. At about the same time in 2005, the Employer began to focus on substance abuse

issues with employees who were not at the point of termination. The Union was also

involved. An attendance management program was introduced by the Employer and

levels of discipline below termination were used to get the attention of employees before

they reached the point of termination. Where appropriate, the Union was also able to

assist employees in this process. This approach was in place for a few years and there

were some successes, but also some failures, Mr. Hall put it.

12. In 2008 the Labour Relations Department of the Employer began sending some

employees with substance abuse issues to outside health care professionals prior to

making decisions on discipline and employment contracts. By 2009 the Department

began to bring employees in for interviews when it had “reasonable cause” to suspect

substance abuse as a result of culpable actions such as being away without leave or being

under the influence while at work. The assessments were done by outside addiction

specialists and, following an assessment, a decision would be made about the

appropriate discipline. Employment contracts at this time included mandatory testing,

mandatory counseling and mandatory after care including consultations with the OHD.

13. The second stream identified by Mr. Hall, where the Employer was involved in drug

and alcohol issues, was directly through the OHD. The OHD would become involved

once an employee had completed a residential treatment for substance dependence and

wanted to return to work. Before a return to work, an employee would be seen by the

CMO or other staff at the OHD and a Relapse Prevention Agreement would be worked

out. Examples of the elements of a Relapse Prevention Agreement included the

employee agreeing to attend a set number of Alcoholics Anonymous meetings a week;

agreeing to attend counseling sessions; agreeing to follow the treatment

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recommendations of a treating psychiatrist if appropriate; among other matters. An

employee would not return to work these things had been completed successfully.

14. Mr. Hall and Dr. Galbraith testified that in 2009 these two streams were still

essentially an ad hoc process and they were not always effective at getting to the key

issue of dealing with an employee’s medical condition and the ability of employees to

report to work as medically fit. As the Employer saw it, there was no layer built into the

process to get resolution of these issues and ensure safety in the worksite before a

medical issue, including a dependency issue, became obvious. For these reasons the

idea of an Employer policy with respect to alcohol and drug use began to be developed.

C. THE POLICY

15. The Policy is dated March 10, 2010. As part of the evidence in this arbitration the

Employer provided four amendments to the Policy.

16. I reproduce the Policy in full except for a flow chart and two appendices at the back

(Appendix A is discussed and summarized in the following paragraph), as amended, as

follows,

1. Definitions As used in this Policy, the terms listed hereafter are defined as follows: “Alcohol” – includes wine, beer, distilled spirits and any liquid containing ethyl alcohol, whether or not intended as a beverage. “Collateral information” – may include additional information obtained from workplace personnel, medical professionals, and PharmaNet. “Company” – Rio Tinto Alcan (Kitimat/Kemano BC Operations) “Drug Paraphernalia” – means any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. It includes but is not limited to items such as bongs, roach clips, miniature spoons, and various types of pipes.

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“Illicit drugs” – includes any substance other than alcohol, the possession, use, or sale of which is prohibited, restricted or controlled by law, or prescription medications without a legally obtained prescription. “Incident” – An incident is a single event or continuous/repetitive series of events that results in, or could have resulted in, one or more of the following impacts:

o an occupational injury or illness;

o damage to physical assets (eg plant & equipment), the environment, process, product or reputation;

o disruption to a community;

o exposure to legal liability;

o security threat.

It is evaluated by both its Actual Consequence, and its Maximum Reasonable Outcome for each area of impact. “Medical Evaluation” – a set of medical procedures performed by a medical doctor or a registered nurse that may include an interview of the employee, Collateral Information, medical history, physical examination, verbal and written screening questionnaires, and based upon finding, laboratory testing including, but not limited to, oral fluids, urine, breath, and blood testing, and cognitive testing, and referral as required. “Medication” – a drug that is intended by the manufacturer, a physician of the user for the treatment of a physical or mental condition, including both prescription and non-prescription drugs. “Near miss” – an incident that has actually happened and in which no actual injuries, illnesses, environment or property damage has occurred. Sometimes also referred to as a Near Hit. “On duty” – any period during which an employee:

(a) is performing work at any Company worksite; or (b) is performing work at another location for the Company; or (c) is under an obligation to perform work at or for the Company; or (d) is using Company-provided transportation in connection with (a), (b), or (c) above;

And includes meal breaks, other breaks, and any period during which an employee is on stand-by, but does not include business or social functions where consumption of Alcohol is permitted by the Company.

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“Possession” – For the purposes of this Policy, an employee has anything in possession when he or she has physical possession or control of a Substance at the Worksite (for instance, in his or her Company locker, lunch kit, tool kit, or vehicle at the Worksite). “Substance” – Alcohol or any substance listed on a schedule of the Controlled Drugs and Substances Act including all illicit drugs. In addition, a “Substance” includes any impairing agent, including prescription or non-prescription medication, which can impair judgment or the ability to safely perform any task, taken by an employee without first consulting his or her supervisor or a member of the Occupational Health Department. “Substance Dependence” (a) A maladaptive pattern of substance use, leading to significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period.

Tolerance, as defined by either the following:

A need for markedly increased amounts of the substance to achieve intoxication or desired effect

Markedly diminished effect with continued use of the same amount of the substance

(b) Withdrawal, as manifested by either of the following:

The characteristic withdrawal syndrome for the substance.

The same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.

(c) The substance is often taken in larger amounts or over a longer period than was intended (d) There is a persistent desire or unsuccessful efforts to cut down or control substance use (e) A great deal of time is spent in activities necessary to obtain the substance, use the substance or recover from its effects (f) Important social, occupational or recreational activities are given up or reduced because of substance use (g) The substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.

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“Worksite” – Any and all property, facilities, land, parking lots, structures, and vehicles owned, leased, used or under the control of the Company, and/or any job site to which the Company assigns an employee. “Zero Tolerance” – Employees shall not attend the Worksite with any Substance in their body or in their Possession. This includes no use of Substances during work hours. 2. Policy Purpose 2.01 The purpose of this policy is to:

(a) provide employees with a safe and healthy drug and alcohol free workplace; (b) provide guidance and assistance for employees who are dealing with a substance dependence; (c) provide guidance to supervisors and other managers on implementing this Policy; and (d) identify circumstances in which a Medical Evaluation of an employee is required.

3. Policy Statement 3.01 The Company is committed to the health and safety of our employees, contractors, visitors, the public, and the environment. The Company makes every reasonable effort to minimize risks associated with our operations and to ensure a safe, healthy and productive workplace. 3.02 The Company will assist its employees with substance dependence through access to treatment resources. Employees with substance dependence are expected to access assistance before it impacts their work performance. Employees with possible substance dependence will be provided with specialized medical assessment, treatment, and structured relapse prevention programs. Full participation and adherence to treatment and structured relapse prevention programs shall be required of the employee. 3.03 Alcohol and illicit drugs as well as some prescription and non- prescription medications, if used prior to reporting for work or during working hours, can cause impairment resulting in a significant safety hazard. 3.04 The Company has undertaken to eliminate the threat that substance consumption can present, to both its employees and the business. The Company does not tolerate possession or use of any medically unauthorized substance at the worksite. Any employee found to be in possession of a medically unauthorized substance or drug

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paraphernalia, or using a substance without medical authorization on the worksite shall be terminated immediately. 3.05 Each employee is expected to report to work on time, to behave in a responsible manner, and present him or herself in a fit and healthy state to perform his or her job in a safe manner which is consistent with established Company practices, policies and procedures. Accordingly, the following are prohibited:

(a) Use or possession of a medically unauthorized substance at the worksite; (b) An employee at the worksite with any medically unauthorized substance in his or her body (c) Manufacturing, cultivating, offering for sale, selling, or distributing a substance at the worksite.

Note: The WorkSafe BC Occupational Health and Safety Regulation states at s. 4.20 (“Impairment by alcohol, drugs or other substances”):

(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else. (2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else. (3) A person must not remain at a workplace if the person’s behavior is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons.

3.06 In the special circumstances of Kemano, alcohol may be possessed and consumed while not on duty or stand-by, in areas designated by the Company. 3.07 The Company reserves the right to discipline, up to and including termination, in the appropriate circumstances for breaches of this Policy. 3.08 This policy applies to all of the Company’s employees. 3.09 This policy is subject to ongoing review and evaluation by the Company. Modifications will be made as deemed necessary to respond to current circumstances and evolving needs.

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4. Obligations 4.01 All employees are accountable for reading and understanding this policy and their responsibilities set out herein. 4.02 Employees who are taking medications of any kind, whether over the counter prescribed or self-administered, are responsible for consulting a physician or pharmacist when the potential effects of use of the medication or combination of medications affect work performance. Employees are expected to consult a physician or pharmacist when the potential effects of use of the medication or combination of medications on work performance are unknown to the employee. If the effects of the medication can impair judgment or the ability to safely perform any task, the employee must inform without delay his or her supervisor or a member of the Occupational Health Department (the “OHD”).

Note: According to the WorkSafe BC Occupational Health and Safety Regulation, s. 4.20, “…workers and employers need to consider the effects of prescription and non-prescription drugs, and fatigue, as potential sources of impairment from any source, and for adequate supervision of work to ensure reported or observed impairment is effectively managed.”

4.03 Upon being informed of an employee’s use of medications in accordance with article 4.02, the OHD will determine employee fitness to work while on medications. 4.04 Where an employee has reason to believe that he/she has substance dependence, whether or not the substance dependence results in a violation under Article 3.05, the employee is obligated to report the fact and circumstances of the potential substance dependence to a member of the OHD. 4.05 Employees with possible substance dependence may be provided with, and are expected to fully participate in a Medical Evaluation, additional medical assessments at the discretion of the OHD, and may be provided with, and are expected to adhere to treatment and/or structured relapse prevention programs. 4.06 All employees are accountable for raising concerns with their supervisor about another person’s fitness for work without delay. 4.07 All employees are accountable for notifying their supervisor without delay when they are a witness to the unauthorized possession or consumption of a substance on the worksite or during work.

Note: The Workers Compensation Act, s. 116 requires that: (1) Every worker must

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(a) take reasonable care to protect the worker’s health and safety and the health and safety of other persons who may be affected by the worker’s acts or omissions at work, and (b) comply with this Part, the regulations and applicable orders.

(2) Without limiting subsection (1), a worker must

(a) carry out his or her work in accordance with established safe work procedures as required by this Part and the regulations, (b) use or wear protective equipment devices and clothing as required by the regulations, (c) not engage in horseplay or similar conduct that may endanger the worker or any other person, (d) ensure that the worker’s ability to work without risk to his or her health or safety, or to the health or safety of any other person, is not impaired by alcohol, drug or other causes, (e) report to the supervisor or employer (i) any contravention of this Part, the regulations or an applicable order of which the worker is aware, and (ii) the absence of or defect in any protective equipment, device or clothing, or the existence of any other hazard, that the worker considers is likely to endanger the worker or any other person, (f) cooperate with the joint committee or worker health and safety representative for the workplace, and (g) cooperate with the board [sic], officers of the Board and any other person carrying out a duty under this Part or the regulations.

4.08 A supervisor will intervene when an employee’s ability to perform his or her job appears to be impaired. When the supervisor has reasonable cause to believe an employee is unfit for work the supervisor shall either immediately escort the employee to the OHD for a Medical Evaluation, or if the OHD is unavailable, the supervisor will request [that] the employee be escorted out the worksite (as per the “Escort Out” procedure, Appendix A). At the first opportunity, the supervisor must arrange for a Medical Evaluation of the employee with the OHD.

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The employee will not be permitted to return to work until cleared by the OHD as fit for work. 4.09 Employees must remain fit for duty and in compliance with this policy when on stand-by as per Letter of Understanding 18-LU-#1. 4.10 If an employee is not on stand-by and the employee is requested to perform unscheduled work at a time when the employee’s ability to safely perform work may be adversely affected by a substance, the employee must refuse the request. The employee will not be disciplined for refusing under these circumstances. 5. Occupational Health Department (OHD) 5.01 The OHD shall provide the following services as required:

(a) Urgent Medical Evaluations and diagnostic procedures; (b) Referral for medical assessments, and/or treatment; (c) Medical monitoring of relapse prevention; and (d) Liaison with attending physicians or other health care professionals.

5.02 The OHD will provide the Company with the following employee information only:

(a) Fitness for work; (b) Probably duration of absence from work; (c) Recommendations regarding restrictions or workplace accommodations; (d) Compliance or non-compliance with monitored relapse prevention program; and (e) Prognosis. (f) Where in a Medical Evaluation a test is required and there is a refusal, dilution, substitution or adulteration.

6. Medical Evaluations 6.01 The reasons for Medical Evaluations may include, but are not limited to, pre-employment, fitness to work, post incident, near miss, reasonable cause, return to work. 6.02 A Medical Evaluation is a set of medical procedures performed by a medical doctor or a registered nurse that may include an interview of

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the employee, collateral information, medical history, physical examination, verbal and written screening questionnaires, and based upon findings, laboratory testing including, but not limited to, oral fluids, urine, breath, and blood testing, and cognitive testing, and referral as required. 6.03 Without limiting the generality of article 6.01 and 6.02 above, an employee may be required to participate in a Medical Evaluation in the circumstances set out below:

(a) Post Incident and/or Near Miss – An employee may be subject to a Medical Evaluation if the employee, in having been directly and immediately involved in, or after having caused at the Worksite, an Incident or Near Miss. However, it is not necessary to conduct a Post Incident or Near Miss Medical Evaluation if there is clear evidence that the acts or omissions of the employee were not a contributing factor (e.g., obvious structural failure, not detectable or preventable with normal maintenance and Inspection procedures). (b) Reasonable cause – An employee may be required to undergo a Medical Evaluation where circumstances give rise to a reasonable cause that the employee has violated Article 3.05 of this Policy. When a supervisor has reasonable cause, the supervisor shall immediately escort the employee to the OHD for a Medical Evaluation (Appendix A). If the OHD is unavailable, the supervisor will request the employee to be escorted out of the Worksite (as per the “Escort Out” procedure, Appendix B). At the first opportunity, the supervisor must arrange for a Medical Evaluation of the employee with the OHD. The employee will not be permitted to return to work until cleared by the OHD as fit for work. (c) Return to Work – When an employee is off work voluntarily in relation to substance dependence, or if the employee is removed from work as a result of an Incident or Near Miss or Reasonable Cause, an employee will be required to undergo a return to work Medical Evaluation prior to returning to work.

6.04 Medical Reinstatement – When an employee is off work voluntarily because of Substance dependence, or if the employee is removed from work as a result of an Incident or Near Miss or Reasonable Cause, he or she will remain off work until all of the following conditions are satisfied if reasonably required:

(a) OHD determines that the employee has met all conditions stipulated as required for the employee to safely return to work. (b) The employee undergoes a return to work Medical Evaluation in accordance with the terms of this Policy. (c) The employee agrees in writing to adhere to a specific relapse prevention agreement as prescribed by OHD.

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7. Privacy of Records 7.01 Employee records pertaining to Medical Evaluations that occur as a result of this policy may be viewed only by the OHD unless authorized by employee’s consent or required by law. 8. Searches for alcohol and illicit drugs 8.01 In addition to the Company’s general search rights, where there is reasonable cause to suspect that an employee is in possession of alcohol, illicit drugs, or a medication in circumstances prohibited by this policy, the employee may be required to undergo a search of their person and property on the worksites. 8.02 Supervisors are responsible for notifying their Superintendent and the Labour Relations Department of any situation where a search may be justified. Management will follow appropriate procedures to investigate the situation including involving professionals when required. 9. Policy Violations 9.01 The following conduct by an employee may be considered a violation of this Policy and may be the basis for the Company to impose discipline in accordance with the legal principle of just cause:

(a) A violation by an employee of any standard under Article 3.05; (b) A violation by an employee of any reporting obligation under Articles 4.02, or 4.04 (c) A violation by an employee of any standard under Article 6. (d) Where in a Medical Evaluation a test is required and there is a refusal, dilution, substitution or adulteration.

10. Contractors 10.01 All contractors must comply with all RT Alcan Primary Metal Group- BC HSE policies, including the Alcohol and Other Drugs Policy. All contractors will receive a copy of the policy and will be required to read it and sign an acknowledgement document before beginning their work on RTA worksites or other sites where they represent the company. 10.02 Any violation of the policy by contractor or contractor’s employee will bring an immediate removal of the contractor or contractor’s employee from the worksite, and can result in contract cancellation.

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17. The Employer has also prepared an “Observation Checklist” as part of a fitness for

work process and this is Appendix A to the Policy. In its argument the Employer

submitted that these are the factors that the Employer considers when it is looking at

whether there is reasonable cause for an employee to have a Medical Evaluation. This

checklist is as follows,

o Having caused at the worksite an Accident/Incident or Near Miss

o Smell of alcohol or marijuana

o Changes in appearance that could indicate a medical condition that

might interfere with safety: e.g. red eyes, slurred speech, confusion,

difficulty concentrating, apparent memory problems, serious tremor,

poor coordination, staggering

o Dramatic change in attitude, such as aggressive behavior,

suspiciousness, rage, unusual emotional flare-ups

o Serious or recurrent complaints from co-workers suggesting possible

workplace impairment

o Abrupt deterioration in workplace behavior and energy level

o Serious deterioration in Health [sic].

18. This checklist also includes space for “Observations/Comments” and it has room for

the signature of a supervisor and “Staff Witness”. The original document is sent to the

Human Resources Department and a copy is sent to the OHD.

D. EXPERT EVIDENCE

19. The Employer obtained the opinion of an expert, Dr. Ray Baker, a qualified physician

in British Columbia with fellowships in both addiction medicine and family medicine.

Dr. Baker’s qualifications as an expert are not in dispute and his opinion was entered

into evidence through his written report without oral testimony.

20. Dr. Baker’s report included the questions he was asked by counsel for the Employer

and I reproduce the questions and answers as follows,

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1. Section 3.04 of the Policy states that any employee found to be in possession of a medically unauthorized substance or drug paraphernalia, or using a substance without medical authorization on the worksite shall be terminated immediately. (a) In your opinion, what medical effect will Section 3.04 (“Immediate termination”) have on the well-being and health of an employee who falls within the scope of Section 3.04 and who has a substance use disorder? It is important to understand that people with substance dependence continuously apply a cost-benefit analysis to their drug use: so long as they remain convinced that the benefits (pleasure, reward, relief) of their drug use outweigh the costs – (consequences – social, health, emotional, legal, financial, vocational) – they will continue to use substances and their chronic disorder will progress. By announcing that the employer is taking a very strong stand, assigning very serious consequences for behaviours associated with workplace drug use, most drug dependent employees will defer their drug taking behaviours to times other than when they are working. For those substance dependent employees whose addiction has progressed to a later stage and their growing compulsion is now resulting in their using drugs even during work hours it provides an immediate and unequivocal consequence. The phrase “hitting bottom” was coined to describe that temporary window of clarity when the addict becomes aware that the consequences now outweigh the perceived benefits of drug use, and they become willing to accept help to begin the recovery process. As an Addiction Medicine specialist I find it very easy to motivate previously resistant substance dependent people to enter intensive treatment programs and achieve lasting abstinent recovery in that window of time after they have experienced a very serious consequence, such as loss of their job. I am personally aware of several substance dependent people who are alive, fit and healthy today directly because their addiction progressed to the point that they lost their job because of it and that became their “bottom”. (b) In your opinion, what medical effect will Section 3.04 (“immediate termination”) have on the well-being and health of an employee who falls within the scope of Section 3.04 and who does not have a substance use disorder? In a safety sensitive workplace it is important for all workplace personnel to recognize that safety is paramount. By making it clear that voluntary behaviours that can endanger workplace safety will not be tolerated and that the consequences of such violations will be severe, the employer is sending the right message. It allows other workers to feel safer – one of the determinants of workplace health. If, in spite of being aware of a policy statement such as this, an employee voluntarily engages in prohibited behaviours, then that employee is demonstrating extremely poor judgment that would potentially put his/herself and other workers at risk. Such an employee probably should not be working in a safety sensitive situation such as that found at the Rio Tinto Alcan

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smelter. Losing their job might ultimately save their life. From the perspective of workplace health and safety, as an Occupational Addiction Medicine consultant, I believe the message sent by this type of statement is appropriate. 2. The Policy may require employees in some circumstances to undergo a Medical Evaluation and possibly further medical assessments. (a) In your opinion, is there a medical rationale for the Employer to possibly require a Medical Evaluation (and possible further medical assessments) in a post incident and/or near miss scenario? If so, what is it? Yes there is. When an employee is involved in an accident or narrowly misses an accident that cannot be readily explained by contributing factors other than possible impairment of the employee, it is important to determine whether or not the employee is fit to continue doing their safety sensitive job. A Medical Evaluation will determine whether or not there is any form of impairment in the employee and whether or not further steps are necessary to ensure the employee is able to safely resume their job. Since the immediate Medical Evaluation is a brief and general screening process to indicate risk or increased likelihood of many different causes of possible impairment, further specialized medical or psychiatric evaluations may be required to definitively identify and recommend specific treatment for the condition so identified. (b) In your opinion, is there a medical rationale for the Employer to possibly require a Medical Evaluation (and possible further medical assessments) in a reasonable cause scenario (as defined in greater detail by reference to Appendix A “Fitness for work Process Observation Checklist”)? If so, what is it? Yes there is. There are many, many causes of serious enough worker impairment to jeopardize workplace safety. Supervisors are tasked with the responsibility of ensuring through observation that employees remain fit to safely perform their jobs. When a supervisor observes an employee whose appearance, odour, behavior or performance might indicate impairment, the supervisor must intervene. Initially that intervention will take the form of a conversation to determine if there is a reasonable explanation for their observation and to determine if the employee seems to be safe to continue working. When the supervisor believes the employee is unfit or has doubt about the employee’s fitness, then it is appropriate for the supervisor to request assistance from the occupational health department to determine employee fitness. (c) In your opinion, is there a medical rationale for the Employer to possibly require a Medical Evaluation (and possible further medical assessments) in a return to work scenario?

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If so, what is it? Yes, there is. When employees are off work because of medical, psychiatric or addictive disorder it is essential that a medical practitioner with a good understanding of the demands and safety issues at a particular workplace determine that the employees are indeed fit to safely perform their jobs prior to their return to work. Sometimes workers will be cleared by their attending physician for return to work when they are not fit to safely return. This occurs for several reasons. The family physician will often blindly trust the statement of the patient when it comes to workplace issues, so when their patient says they feel they are ready to go back to work, the doctor will write a short note endorsing their return to work. Also, when the worker has been off work because of a substance use disorder, the physician, who most likely has had no formal training in addiction medicine, will not be able to accurately determine the patient’s health status and stability with respect to the addictive disorder. Finally, many busy primary care doctors are not familiar with the demands and risks of a specific work site and are poorly equipped to determine their patient’s fitness for a particular job. (d) In your opinion, is there a medical rationale for the Employer to possibly require a Medical Evaluation (and possible further medical assessments) in a medical reinstatement scenario? If so, what is it? The answer to this question is similar to the last [2(c)]. A properly trained medical person must evaluate the employee’s current status prior to reinstatement to determine that: (a) they are currently fit to safely do their job and (b) they are likely to remain fit to safely do their job. If there is a serious question as to the employee’s likely longer-term stability, then the health professional must ensure there is some type of medical monitoring established to increase the likelihood that they will remain fit and safe to do their job and, in the event of destabilization of their medical condition, provide a way for detection and intervention to reduce the immediate risk and get further help for the employee. 3. This Policy contemplates the use of a Medical Evaluation (along with a possible further medical assessment). In your opinion, are there medical benefits to the employee in requiring him/her to undergo a Medical Evaluation (along with a possible further medical assessment) as compared to a drug and alcohol test? The driving principle behind a good drug and alcohol policy is workplace health and safety. Substance use and substance use disorders can result in worker impairment thereby jeopardizing safety at work. If the idea of the policy were to catch people who use illegal drugs, then establishing mandatory drug testing in post-incident, post-accident, near miss and for cause scenarios would be appropriate. But drug testing does not address workplace impairment, the real threat to safety. Medical evaluation refers to a collection of clinical activities that include interviewing, observation, examination, cognitive function screening, review of collateral information – including medical information,

20

and appropriate laboratory testing – depending upon the findings of the other components of the evaluation. During the course of medical examination all possible causes of impairment (fatigue, minor illnesses, medications, depression, stress, serious illnesses such as diabetes and dementia) may be identified. A positive drug test might indicate that some time in the past several weeks a worker had used marijuana but would not indicate his or her current fitness to safely do the job. Breath testing for alcohol is the only drug test that has been reliably correlated with impairment. So, in summary, the limitation of drug and alcohol testing in a policy such as this is that for the most part it provides inadequate information and the wrong type of information. By requiring Medical Evaluation rather than drug testing in this policy the employer is keeping the focus on health and safety: identification of all serious causes of worker impairment and then coupling identification with comprehensive specialized diagnostic assessment, specific treatment and return to work for employees who are diagnosed as having medical, psychiatric and addictive disorders that had resulted in their ability to safely perform their jobs. There are several important benefits to the employee of using Medical Evaluations rather than drug and alcohol testing. Using Medical Evaluations decreases the likelihood of causing an employee to experience negative workplace consequences because of recreational use of substances during their own time (e.g. holidays) having no relevance to workplace safety. It also can result in timely recognition and correction of a variety of medical, psychiatric or addictive conditions that not only jeopardize workplace health but also threaten the health of the employee.

E. DECISION AND REASONS

21. I am being asked by the Union to find that parts of the Policy of March 2010 are

unreasonable. This grievance and this decision are not about the application of the

Policy to individual employees; the specific circumstances of individual employees will

be determined by subsequent decisions of the Employer and perhaps by subsequent

grievances.

22. I begin by pointing out that the Employer has the right to introduce unilateral rules

and policies as it did in this case, subject to the principles derived from previous

arbitration awards. For example, any rule or policy must be consistent with the

collective agreement that is in place. As well, the rule or policy must be reasonable and

this typically means applying a balancing test. This balancing has been discussed in the

following terms in a previous award,

21

An essential part of the balancing interests is to determine whether an employer promulgated rule is reasonable. … [A]bsent contrary language in a collective agreement, it is open to an employer to make policies and rules governing its employees, subject to certain recognized standards. Those standards, best articulated in the KVP decision [(1965), 16 L.A.C. 731 (Robinson)] include the requirement, recently acknowledged by the courts, that a policy or rule must be related to the business interests of the employer, and it must be reasonable (Re Municipality of Metropolitan Toronto v. C.U.P.E., Local 43 (1990), 69 D.L.R. (4th) 268 (Ont. C.A.)). … Canadian National Railway co. V. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [2000] C.L.A.D. No. 465 (M. Picher), at paragraph 190. Also, Vancouver Shipyards Co. and U.A. Local 170, (2006) 156 L.A.C. (4th) 213 (Hope).

23. The above quote includes a reference to the well-known decision in KVP. The

approach in that decision has been "reformulated" as follows, "… any plant rules which

are unilaterally promulgated must not be inconsistent with the terms of the collective

agreement, their enforcement must not be unreasonable, and they must be brought to

the attention of those intended to be regulated by them" (Brown & Beatty, Canadian

Labour Arbitration, September 2010, paragraph 4:1520).

24. In this case, the evidence from John Hall about the history of the development of the

Employer's approach to drug and alcohol testing and related activities, including

previous arbitration awards, provides a firm and reasonable basis for the Employer to

develop policy in this area. The Policy has been brought to the attention of the affected

employees and the Union.

25. The grievance in this case raises issues about the reasonableness of the Policy and

whether the "zero tolerance" provision in the Policy is consistent with the collective

agreement.

26. I will proceed by discussing the issue of Medical Evaluations under the Policy and

then set out a review of the arbitral jurisprudence as it relates to medical examination

and drug/alcohol testing of employees. Finally, I will address whether the Policy is

reasonable and, finally, the issue of zero tolerance.

22

(a) The Policy: Medical Evaluation

27. It may be recalled that an important component of the Policy is a "Medical

Evaluation". I reproduce the definition of that term,

“Medical Evaluation” – a set of medical procedures performed by a medical doctor or a registered nurse that may include an interview of the employee, Collateral Information, medical history, physical examination, verbal and written screening questionnaires, and based upon finding, laboratory testing including, but not limited to, oral fluids, urine, breath, and blood testing, and cognitive testing, and referral as required.

This is repeated in section 6.02 of the Policy.

28. The Employer's expert, Dr. Baker, discusses Medical Evaluation in similar terms as

follows,

Medical evaluation refers to a collection of clinical activities that include interviewing, observation, examination, cognitive function screening, review of collateral information - including medical information, and appropriate laboratory testing - depending upon the findings of the other components of the evaluation. During the course of medical examination all possible causes of impairment (fatigue, minor illnesses, medications, depression, stress, serious illnesses such as diabetes and dementia) may be identified. … By requiring Medical Evaluation rather than drug testing in this policy the employer is keeping the focus on health and safety: identification of all serious causes of worker impairment and then coupling identification with comprehensive specialized diagnostic assessment, specific treatment and return to work for employees who are diagnosed as having medical, psychiatric and addictive disorders that had resulted in their inability to safely perform their jobs.

29. Medical evaluations are a key component of the Policy. "Employees with possible

substance dependence may be provided with, and are expected to fully participate in a

Medical Evaluation … (section 4.05). Similarly, a supervisor is required " … to intervene

when an employee's ability to perform his or her job appears to be impaired" and,

"When the supervisor has reasonable cause to believe an employee is unfit for work, the

supervisor shall either immediately escort the employee to the OHD for a Medical

Evaluation … " or escort the employee off the worksite if the OHD is unavailable. At the

"first opportunity, the supervisor must arrange for a Medical Evaluation of the employee

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with the OHD" (section 4.08). The reasons for a Medical Evaluation "… may include,

but are not limited to, pre-employment, fitness to work, post incident, near miss,

reasonable cause, return to work" (section 6.01, also 6.03). There are other references

to Medical Evaluation in the Policy.

30. Employees are required to undertake a Medical Evaluation in some circumstances.

Section 4.05 states that

Employees with possible substance dependence may be provided with, and are expected to fully participate in a Medical Evaluation, additional medical assessments at the discretion of the OHD, and may be provided with, and are expected to adhere to treatment and/or structured relapse prevention programs.

There are significant consequences for employees who do not agree to undergo a

Medical Evaluation. An employee who does not agree would commit a "policy violation"

that "may be the basis for the Company to impose discipline …" where there is a

violation of the Policy (Article 9.01). One of the circumstances in where a violation of

the Policy can occur is when there a violation by "an employee of any obligation under

Article 6". Article 6 states that "an employee may be required to participate in a Medical

Evaluation in the circumstances" of a near miss, reasonable cause etc.. I note that

Article 6.01 makes it clear that the "reasons for a Medical Evaluation may include, but

are not limited to, pre-employment, fitness for work, post incident, near miss,

reasonable cause, return to work" (emphasis added). From this it seems clear the

employer has considerable discretion over when a Medical Evaluation is required and,

taken on its face, the OHD is not necessarily involved in a decision about whether there

should be a Medical Evaluation. And an employee can be disciplined for not

participating in a Medical Evaluation when directed by the Employer to do so.

31. As can be seen, the terms "fitness to work" or "reasonable cause" are used in the

Policy. They are not defined. However, the Policy includes, as Appendix A, a document

titled "Fitness for work [sic] Process Observation Checklist". This document is intended

to be completed by a supervisor; there is space for "Observations/Comments" of the

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supervisor and space for the name of an employee to whom it applies. The checklist for

the supervisor to complete has the following items,

o Having Caused at the worksite an Accident/Incident or Near Miss

o Smell of alcohol or marijuana

o Changes in appearance that could indicate a medical condition that

might interfere with safety: e.g. red eyes, slurred speech, confusion,

difficulty concentrating, apparent memory problems, serious tremor,

poor coordination, staggering

o Dramatic change in attitude, such as aggressive behavior,

suspiciousness, rage, unusual emotional flare-ups

o Serious or recurrent complaints from co-workers suggesting possible

workplace impairment

o Abrupt deterioration in workplace behavior and energy level

o Serious deterioration in Health [sic].

32. In argument, the Employer submitted that this checklist is the reasonable cause

standard that will be applied under the Policy. That is, a supervisor will consider this

checklist when deciding whether there is reasonable cause to, for example, either escort

an employee to the OHD for a Medical Evaluation or, if the OHD is unavailable, escort

the employee off the worksite (Article 4.08). Whether reasonable cause can be based on

only one of the items on the checklist is not clear; this is discussed below.

33. Finally, the intent appears to be that the decision as to whether there will be a

Medical Evaluation lies with a supervisor or other person without medical training.

This is obviously an area where there is considerable value to having the occupational

health expertise of the OHD available to supervisors (but, where there are interviews or

examinations, subject to patient confidentiality).

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(a) The jurisprudence

34. Previous arbitration decisions involving employees who are unable to work for

medical reasons or are restricted in what they can do at work as a result of an injury or

disease, are legion. There are also numerous decisions about alcohol and drug testing,

many of the leading cases decided by arbitrator Michel Picher. These decisions

constitute the legal context for the introduction of the Policy by the Employer in this

case (as well as the requirements in the KVP, supra, award).

35. With regards to medical examinations and medical information about employees,

separate from drug and alcohol testing, the principles taken from the cases follow. Two

qualifiers are appropriate. First, I do not address the situation where there is a duty to

accommodate as a matter of human rights. And, as usual, general propositions from

previous awards are subject to the language of the applicable collective agreement. My

review of the applicable principles includes the following,

(a) There is a special privacy interest which attaches to medical information and

the doctor-patient relationship is one of the most private. Therefore, medical

information should receive no broader distribution than is reasonably

necessary (British Columbia Teachers Federation vs. British Columbia Public

School Employees Association, [2004] B.C.C.A.A.A. No. 177 (Taylor); cited in

Telus Communications Co. v. Telecommunications Workers Union (Denial of

Benefits Grievances), [2010] C.L.A.D. No. 11 (Lanyon), at paragraph 77). The

obvious purpose behind this high level of protection is so that patients will

confide in their doctors without fear of their confidences being disclosed,

except in narrow circumstances. An example of this is the care that is taken by

the OHD in protecting the privacy of employees who visit there, discussed

above.

(b) It is well established that persons do not, by virtue of having the status of an

employee, lose their right to privacy and integrity of the person. An employer

26

could not at common law assert any right to search an employee or subject an

employee to a physical examination without consent. Therefore, there is

nothing that can be described as an inherent management right to subject an

employee to what would otherwise be a trespass or an assault upon the person

of the employee (Monarch Fine Foods Co. v. International Brotherhood of

Teamsters, Chauffeurs, Warehouseman and Helpers of America, Local 647

(Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees(

(Gogna Grievance), [1978] O.L.A.A. No. 8 (M. Picher), at paragraph 8; also,

Fleet Industries Ltd. v. International Association of Machinists and Aerospace

Workers, Local 17 (Washington Grievance), [2000] O.L.A.A. No. 442

(Randall), at paragraph 45 and citing Re Nav Canada and Canadian Air

Traffic Control Association (1998), 74 L.A.C. (4th) 163 (Swan), at page 182).

As will be seen, the privacy of employees is an important right but not an

absolute one. And, as discussed below, the situation of drug and alcohol tests

involves a balancing of this proposition with the right of employers to manage a

safe work site. If there is reasonable cause, an employee may be disciplined for

refusing an alcohol or drug test.

(c) An employer has a ”continuing right" to inquire into an employee's absences

from work and an employee has a "continuing obligation to account for any

absence". Further, an employer is not required to accept any explanation as

adequate and the employer can compel information from the employee

sufficient to determine if the absence is bona fide. And an employer can reject

a medical certificate as inadequate (Board of School Trustees School District

No. 36 (Surrey) and Canadian Union of Public Employees, Local 728, [2006]

B.C.C.A.A.A. No. 47 (Lanyon) at paragraph 85; cited in Telus Communications

Co., supra, at paragraph 83).

(d) But, in keeping with the private nature of medical information, an employer is

only entitled to the information specifically required to make the decision at

hand. In general, an employer is entitled to information that is "reasonably

necessary" and what is necessary may vary, depending on the circumstances of

27

the situation (Telus Communications, supra, at paragraph 60). For example, if

the issue is the restrictions that are medically justified for an employee to

return to work then an employer will be entitled to information about this

issue. Collateral issues such as, for example, diagnosis would not be relevant in

this example. Again, the OHD is an example of this with its practice of only

providing information to the operations management of the Employer about

restrictions on employees' ability to perform their work and not disclosing

things like diagnosis.

(e) Where there are reasonable grounds for requiring a medical assessment, an

employer can insist that an employee submit to an examination (Re Via Rail

Canada Inc. and Canadian Auto Workers (2002), 106 L.A.C. (4th) 110 (Hope).

However, whether an employer can compel an employee to submit to an

examination by a doctor of the choice of the employer must depend on either

contractual obligation or statutory authority (Monarch Fine Foods Co., supra,

at paragraph 8; citing Re: Thompson and Town of Oakville, (1963) 41 D.L.R.

(2d) 294 (Ont. H. Ct.)).

(f) Sometimes a problem arises when an employee refuses to provide medical

documentation or otherwise participate in a medical assessment (and there is

no contractual obligation or statutory authority to require an employee to

submit to an examination). In this situation there is a conflict between two

important values. On the one hand, the employer has a legitimate need for

information to manage the work site and, in particular, to be informed about

whether an employee is a risk to himself, other employees, the public or the

property of the employer, or whether he is otherwise unfit to perform the work.

However, the employee also has a legitimate privacy right when it comes to

personal medical information and his relationship with his physicians, as

discussed in Monarch Foods, supra. As above, this patient-doctor relationship

is generally recognized as requiring a high level of protection and it should not

be lightly overridden.

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(g) Previous awards pose the following solution to this problem. An employer

cannot discipline an employee for refusing a medical examination. Instead, the

remedy available to an employer is to suspend the employee with or without

pay, depending on the circumstances, unless the necessary medical

documentation is provided (Via Rail, supra, pages 129-130; also Re NAV

Canada, supra and Fleet Industries, supra, paragraph 45). More severe but

still non-disciplinary consequences may also eventually follow for an employee

in these circumstances,

The fact is that if an employee chooses not to be examined by the employer’s doctor or to otherwise provide the employer with sufficient information of fitness that the employer feels comfortable about putting him back to work, that employee cannot be terminated as a matter of discipline. He may be subject to termination by virtue of his incapacity but that will have to be done based on the principles of non-culpable cause. The exception would be where the employee deliberately fakes his disability.

Re Shell Canada Products Ltd. (Shellburn Refinery) and Canadian Association of Industrial, Mechanical & Allied Workers, Local 12 (1990), 14 L.A.C. (4th) 75 (Larson).

(h) With regards to "independent" medical examinations there can be some

imprecision about what "independent" means. As an ethical matter all doctors

are independent. However, they also have obligations to their patients and,

indeed, it sometime occurs that the opinion of a physician is challenged

because the physician is advocating for the patient (Sengbush v. Priest (1987),

14 B.C.L.R. (2d) 26 (B.C.S.C.), at page 40). Then there is the opinion of an

expert doctor who is retained by a party adverse in interest; for example, a

doctor retained by an employer to advise the employer about the medical

condition of an employee. That is sometimes called an independent

examination, as is one conducted by a doctor retained by a union. Two other

approaches would seem to get closer to a genuine sense of independence: a

doctor chosen by agreement between the employer and the union/employee or

a doctor chosen by an arbitrator.

29

(i) A recent award considered some of the issues related to independent medical

assessments. In British Columbia v. British Columbia Crown Counsel Assn.

(Fell Grievance), [2010] B.C.C.A.A.A. No. 46 (Lanyon) the employer wanted to

have the grievor examined by its own "independent" doctor. The arbitrator

denied this request and directed that the grievor be examined by a doctor

chosen by mutual agreement. As a starting point the arbitrator pointed out

that, because of the sensitive nature of medical information, medical

examinations by an independent expert are only done in "exceptional

circumstances" (paragraph 75; citing Accenture Business Services for Utilities

v. Canadian Office and Professional Employees' Union, Local 378, [2008]

B.C.C.A.A.A. No. 115 (Taylor), at paragraph 64). The arbitrator stated that, if

the parties were unsuccessful in reaching agreement, then he would "select a

method for appointing an Independent Medical Expert" (paragraph 96). See

also a subsequent award, British Columbia v. British Columbia Crown Counsel

Assn. (Fell Grievance), [2010] B.C.C.A.A.A. No. 97 (Lanyon).

36. Turning to alcohol and drug tests, I note that alcoholism and drug addiction are

medical diseases and alcohol and drug tests would seem to be legitimate medical

procedures to investigate these diseases. Impairment or non-impairment can be

assessed to some extent by observation but I use the word "tests" here in the sense of

tests of the blood or urine or a person's respiration. They can lead to a medical

diagnosis of, for example, addiction. They can reveal information about the medical

condition of the person taking the tests and, therefore, they involve the privacy of the

person. The tests could also reveal other information not related to substance abuse

that is similarly private to an individual. For example, a blood test taken to determine

drug use might also reveal that a person has diabetes. Over all, drug and alcohol tests

would seem to be no more or less intrusive than any other medical procedure (Imperial

Oil Ltd. and C.E.P., Loc. 900 (Re) (2006), 157 L.A.C. (4th) 225 (M. Picher), paragraph

92). The intrusive nature of alcohol and drug testing is a significant reason why

employers require reasonable cause before they can require an employee to undergo

such testing.

30

37. There are some important differences between an employee's obligation to undergo

testing for drugs and alcohol, in particular the consequences for refusing to be tested,

compared to situations where medical assessments or opinions are requested by

employers in cases where there is no issue of alcohol or drug use. I set out the principles

of the s0-called "Canadian Model" of drug and alcohol testing as follows (much of the

following is taken from Imperial Oil, supra, see in particular paragraph 100),

(a) No employee can be subjected to random, unannounced alcohol or drug

testing, save as part of an agreed rehabilitative program. This is the case with

all employees, including those working in safety sensitive positions (Imperial

Oil, supra, paragraph 101), although those positions obviously require

particular vigilance by Employers.

(b) However, an employer may require alcohol or drug testing of an individual

where the facts give the employer reasonable cause to do so. This is a balancing

of interests approach and it departs from the proposition in Monarch Foods,

supra, that an employer could not at common law assert any right to search an

employee or subject an employee to a physical examination without the consent

of the employee (Canadian National Railway Co., supra, at paragraphs 182-

189; citing Trimac Transportation Services - Bulk Systems v. Transportation

Communication Union, [1999] C.L.A.D. No. 750 (Burkett)). Indeed, it has been

pointed out that there are no arbitration or human rights or court decisions

concerning drug and alcohol testing where the approach in Monarch Foods has

been applied strictly (Canadian National Railway, supra, paragraph 181).

(c) It is within the prerogative of management's rights under a collective

agreement to require alcohol or drug testing following a significant incident,

accident or near miss, where it may be important to identify the root cause of

what occurred (and where there is no applicable provision in the collective

agreement that addresses the issue). This follows from an employer's

responsibility to ensure the work place is safe for the employee who may be

31

tested, for the safety of other employees, for the protection of the employer's

property and in some circumstances for the protection of the public.

(d) Drug and alcohol testing is a legitimate part of continuing contracts of

employment for individuals found to have a problem with alcohol or drug use.

As part of an employee's program of rehabilitation, such agreements or policies

may properly involve random, unannounced alcohol or drug testing for a

limited period of time, most commonly two years. This is the only exception

where the otherwise protected employee interest in privacy and dignity of the

person must yield to the interests of safety and rehabilitation, to allow for

random and unannounced alcohol or drug testing.

(e) In a unionized workplace the union must be involved in the agreement which

establishes the terms of a recovering employee's ongoing employment,

including random, unannounced testing.

(f) An employee's refusal or failure to undergo an alcohol or drug test in the three

circumstances described above (a significant incident, accident or near miss)

may properly be viewed as a serious violation of the employer's drug and

alcohol policy, and may itself be grounds for serious discipline. This is a clear

difference from the situation with general medical conditions (not involving

drugs or alcohol) where an employee may be suspended, and perhaps

ultimately dismissed on a non-culpable basis, for refusing to provide the

employer with medical information.

(g) The situation with alcohol and drug testing vis-à-vis medical examinations

generally can be summed up as follows,

… the right that an employer may have to demand that its employees be subjected to a drug test is a singular and limited exception to the right of freedom from physical intrusion to which employees are generally entitled by law. As such, it must be used judiciously, and only with demonstrable justification, based on reasonable and probable grounds.

32

United Transportation Union v. Canadian National Railway Co. (Keeping Grievance), [1989] C.L.A.D. No. 4 (M. Picher), at paragraph 23; cited in Canadian National Railway, supra, at paragraph 188.

(c) Impairment in the workplace & the Policy

38. Safety is an important objective of the Policy. This is reflected throughout the

document including in the "Policy Purpose" section which states that one of the

purposes of the Policy is to "provide employees with a safe and healthy drug and alcohol

free workplace" (Article 2.01(a)).

39. With regards to safety, and as a general context, there can be no doubt that the

Employer, as well as employees, have the legal responsibility to ensure the workplace is

safe. The Policy includes section 116 of the Workers Compensation Act that sets out the

main responsibilities for employees, especially section 116(2)(d) which states that an

employee must ensure that his or her ability to work is not "impaired by alcohol, drugs

or other causes".

40. The equivalent section for the Employer is not cited in the Policy but it is section 115.

Section 115(1) states, among other things, that "every employer must ensure the health

and safety of all workers working for that employer, … and any other workers present at

a workplace at which that employer's work is being carried out", and the employer must

comply with legislation, regulations and any applicable orders. Section 115(2) then

states,

(2) Without limiting subsection (1), an employer must

(a) remedy any workplace conditions that are hazardous to the health or safety of the employer's workers,

(b) ensure that the employer's workers

i. are made aware of all known or reasonably foreseeable health or safety hazards to which they are likely to be exposed by their work,

ii. comply with this Part, the regulations and any applicable orders, and

iii. are made aware of their rights and duties under this Part and the regulations,

(c) establish occupational health and safety policies and programs in accordance with the regulations,

33

(d) provide and maintain in good condition protective equipment, devices and clothing as required by regulation and ensure that these are used by the employer's workers,

41. It follows from section 115 of the Act that, if there is a situation where an employee is

impaired from doing his or her own work, then that person must be removed from the

work place if the impairment creates a hazard and there are no other alternatives.

Further, this impairment is not restricted to the use of drugs or alcohol; it can also be a

result of fatigue, diabetes, dementia or various other causes. The Policy cites section

4.20 of the Occupational Health and Safety Regulations, B.C. Reg 296/97 in this

regard. There are also sections 3.9 (Remedy without delay) and 4.19 (Physical or mental

impairment). The latter is as follows,

3.10 Physical or mental impairment

(1) A worker with a physical or mental impairment which may affect the worker's ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else.

(2) A worker must not be assigned to activities where a reported or observed impairment may create an undue risk to the worker or anyone else.

Simply put, if impairment in any form creates a hazard something has to be done to

remove the hazard.

42. In order for the Employer to comply with this duty it is obviously preferable to have

policies in place. Policies aimed at health and safety are generally a good thing and they

are often supported by unions. While the primary responsibility for safety is a matter

under the Workers Compensation Act, employer policy can set out procedures to follow

in applying that responsibility, including those for investigating employee misconduct

around drugs and alcohol and it may set out the penalties for misconduct. Policy that is

communicated to employees may also act as a deterrent.

43. The Policy in this case requires drug and alcohol testing where there is reasonable

cause and specific situations such as, for example, near misses. As I read the cases,

situations like near misses are specific examples of reasonable cause. If an employee

34

refuses a drug or alcohol test, where there is reasonable cause, he or she is subject to

discipline. I have little difficulty in accepting that this part of the Policy is consistent

with the arbitral jurisprudence. In addition, the definition of "Substance" in the Policy

is consistent with this kind of testing. Therefore, I find the Policy is reasonable to this

extent. I also take from the evidence that the Policy is a necessary element in the

Employer's efforts to deal with the safety issues related to alcohol and drug use that

affect the workplace. It is also consistent with the history of this issue with the

Employer, as described in the evidence of John Hall and Dr. Galbraith.

44. The Policy goes further and requires employees to undergo broadly defined Medical

Evaluations and the reason for this broadness is to include impairment other than drugs

and alcohol. Evaluations under the Policy "may include an interview of the employee,

Collateral Information, medical history, physical examination, verbal and written

screening questionnaires, and based on findings laboratory testing including but not

limited to, oral fluids, urine, breath, and blood testing, and cognitive testing, and

referral as required" (Article 1). The expert report on behalf of the Employer similarly

refers to "all possible causes of impairment (fatigue, minor illnesses, medications,

depression, stress, serious illnesses such as diabetes and dementia)" that "may be

identified" in a Medical Evaluation. Dr. Baker has explained in another paper that

fatigue and "serious medical or psychiatric diseases such as poorly controlled diabetes,

seizure disorder, bipolar disorder or early dementia will often cause serious cognitive

impairment and jeopardize workplace safety if not detected and intervened upon"

(Determination of Fitness for Duty, Human Rights Conference, November 2010,

Continuing Legal Education Society of B.C., pages 5.1.1, 5.1.2). The inclusion in the

Policy of "minor" and "major" illnesses is consistent with the intent that "all possible

causes" are included. Further, by the inclusion of depression and stress, as well as

essentially all illnesses, the intent is also to include a wide range of psychological issues.

45. From this it is clear that Medical Evaluations under the Policy are about more than

drug and alcohol testing. This is something of a departure from previous cases where

employers have introduced policy with respect to drug and alcohol testing only. In some

cases policies for drug and alcohol testing include ways that employees can voluntarily

35

seek assistance without discipline (Esso Petroleum Canada v. Communications, Energy

& Paperworkers Union, Local 614, [1994] B.C.C.A.A.A. No. 244 (McAlpine), (paragraph

45).

46. Other employer policies that are focused on testing for drugs and alcohol have a form

of compulsion but as part of a determination of whether employees are fit to return to

work. In one case, involving drug and alcohol testing, participation in an assessment

was mandatory under the policy but after primary treatment for alcohol or drug

problems (Canadian National Railway, supra, paragraph 11). Similarly, in Elk Valley

Coal Corp. and I.U.O.E. Local 115 (Re), [2004] B.C.C.A.A.A. No. 249 (Sanderson), the

dismissal of an employee was upheld for violation of the employer's drug and alcohol

policy. The specific grounds included an accident involving company property and

refusing to provide a urine sample under the policy. As well, the employee unreasonably

refused to undergo an "assessment" by an independent medical person that was

appropriate to a positive drug test and an admitted pattern of drug usage (paragraph

80). These awards are consistent with the arbitration awards discussed above that set

out the continuing right of employers to inquire into an employee's absences and the

continuing obligation of employees to account for absences as an issue of fitness to

return to work.

47. The decisions in Canadian National Railway and Esso Petroleum do not support

the proposition that broad medical evaluations such as described in the Policy are

consistent with previous awards. Nor are these awards authority for the proposition

that an employee can be disciplined for refusing such an evaluation. Again, previous

awards have sanctioned drug and alcohol testing per se rather than evaluations that

include testing along with a broad range of other investigations for conditions not

related to drugs of alcohol.

48. At this point it is a logical question to ask why Medical Evaluations are necessary in

light of the fact that only drug and alcohol testing has been accepted as the approach in

previous employer policies that address the safety issues related to drug and alcohol use.

The Employer's expert was asked to comment on just this question when he was asked

36

to address the "medical benefits" of a Medical Evaluation over testing. I reproduce that

part of his report as follows,

The driving principle behind a good drug and alcohol policy is workplace health and safety. Substance use and substance use disorders can result in worker impairment thereby jeopardizing safety at work. If the idea of the policy were to catch people who use illegal drugs, then establishing mandatory drug testing in post-incident, post-accident, near miss and for cause scenarios would be appropriate. But drug testing does not address workplace impairment, the real threat to safety. Medical evaluation refers to a collection of clinical activities that include interviewing, observation, examination, cognitive function screening, review of collateral information – including medical information, and appropriate laboratory testing – depending upon the findings of the other components of the evaluation. During the course of medical examination all possible causes of impairment (fatigue, minor illnesses, medications, depression, stress, serious illnesses such as diabetes and dementia) may be identified. A positive drug test might indicate that some time in the past several weeks a worker had used marijuana but would not indicate his or her current fitness to safely do the job. Breath testing for alcohol is the only drug test that has been reliably correlated with impairment. So, in summary, the limitation of drug and alcohol testing in a policy such as this is that for the most part it provides inadequate information and the wrong type of information. By requiring Medical Evaluation rather than drug testing in this policy the employer is keeping the focus on health and safety: identification of all serious causes of worker impairment and then coupling identification with comprehensive specialized diagnostic assessment, specific treatment and return to work for employees who are diagnosed as having medical, psychiatric and addictive disorders that had resulted in their ability to safely perform their jobs. There are several important benefits to the employee of using Medical Evaluations rather than drug and alcohol testing. Using Medical Evaluations decreases the likelihood of causing an employee to experience negative workplace consequences because of recreational use of substances during their own time (e.g. holidays) having no relevance to workplace safety. It also can result in timely recognition and correction of a variety of medical, psychiatric or addictive conditions that not only jeopardize workplace health but also threaten the health of the employee.

49. This opinion addresses the heart of the issue in this case and explains why the

Employer seeks to address more than alcohol and drug testing. Medical Evaluations are

intended to "address workplace impairment" that results from "all possible causes".

These causes include fatigue, all illnesses such as diabetes and all psychological

conditions and disorders that affect work performance as well as drugs and alcohol.

That is, the focus is on impairment in all its forms and not just impairment as a result of

drugs and alcohol. Testing for drugs and alcohol provides "inadequate information and

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the wrong type of information" because it does not measure impairment from other

sources. Medical Evaluations can result in the "timely recognition and correction of a

variety of medical, psychiatric or addictive conditions" that relate to safety and the

health of the employee. Dr. Baker, in his 2010 CLE paper, supra, put the matter

succinctly, "Drug testing does nothing to indicate the presence of impairment due to

other causes that might render the worker unfit for work at that time" (page 5.1.2).

50. I accept this analysis and these conclusions as being consistent with a modern and

sophisticated approach to addiction medicine and impairment generally. In particular, I

accept that testing for drugs and alcohol does not go far enough in order to reveal all the

medical or psychiatric conditions that create impairment and generate hazards at work.

Only an extensive assessment of employees such as contemplated by Medical

Evaluations under the Policy will do this.

51. Under circumstances where there is voluntary participation by individuals who

consent to this approach there is much to commend it. However, a consensual approach

is not used in the Policy. Discipline, including the prospect of dismissal from

employment, is the consequence for employees who refuse to participate in a Medical

Evaluation. These consequences are intended to be a significant motivator for the

individual to change his or her behaviour. Dr. Baker emphasizes this point when he

states, "By announcing that the employer is taking a strong stand, assigning very serious

consequences for behaviours associated with workplace drug use, most drug dependent

employees will defer their drug taking behaviours to times other than when they are

working". Further, when an individual experiences "hitting bottom" that is an

important " … window of clarity when the addict becomes aware that the consequences

now outweigh the perceived benefits of drug use, and they become willing to accept help

to begin the recovery process".

52. I accept that individuals will be more likely to change their behaviour if there are

serious consequences for not changing their behaviour or, more precisely, for not

entering into assessments to understand and treat their behaviour. This may be

particularly apt with regards to drug and alcohol testing where individuals can effect

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some change including recovery in some cases. Notwithstanding the value of this

approach, the broad range of medical/psychological issues that would be addressed with

Medical Evaluations under the Policy must be seen through the prism of the legal rights

and the responsibilities of employees and employers. In short, the reasonableness of the

Employer's Policy is not solely a medical issue.

53. The scope of Medical Evaluations under the Policy is demonstrated by the following

two examples involving an employee with poorly managed diabetes and there is related

impairment at work. In both examples, there is no question that if the impairment

creates safety issues the Employer is required to correct the situation under workers'

compensation legislation, including removing the employee from the specific work site if

that is necessary.

54. The first example is one where policy such as proposed by the Employer in this case

does not exist. As discussed above, in that case the employee with poorly managed

diabetes can be removed from the work site and the Employer is entitled to ask for

medical information about the condition of the employee. If that information is not

adequate then the Employer can ask for further information. Through the offices of the

OHD a referral to a specialist may be facilitated if the employee consents. During this

time the employee may be assigned to other duties or may be suspended from work,

with or without pay, on a non-disciplinary basis.

55. The second example arises under the Policy in this case. If there is reasonable cause

that an employee is impaired as a result of the diabetic condition, then he or she is

required to undergo a mandatory Medical Evaluation or else be disciplined (I note that

an evaluation is discretionary but it is the Employer who decides the matter). In a real

sense the mandatory nature of this approach equates the fact of diabetes with that of a

drug or alcohol problem. Since both create impairment, under the Policy both are

subject to a mandatory evaluation.

56. Again, to the extent that the Policy creates testing for alcohol and drugs it is

reasonable. However, in my view, the creation of mandatory evaluations under the

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Policy violates the privacy rights of employees as established by the arbitral

jurisprudence. Where the Policy intrudes into areas of private medical information,

without any issue of alcohol or drugs, and makes a refusal to participate or disclose that

information a disciplinary offence, it is unreasonable. The arbitral jurisprudence

emphasizes the non-disciplinary nature of refusals of this kind.

57. I might also add that there are suggestions in the Policy and in the evidence, that the

Employer seeks to rehabilitate employees with substance dependencies and other

sources of impairment in a mandatory way. For example, there is the statement in

Article 3.02 that "The company will assist its employees with substance dependence

through access to treatment resources". Then, at the end of the same article, there is the

statement, "Full participation and adherence to treatment and structured relapse

prevention programs shall be required of the employee". Dr. Baker also points to the

importance of an employee "hitting bottom" before the consequences of addiction

outweigh the benefits of substance abuse and the employee "become[s] willing to accept

help to begin the recovery process". The effort to assist employees towards recovery is

commendable and it may be important to individuals, their families as well as the

Employer. However, if rehabilitation is an objective of the Policy, it may also raise the

issue of whether an employee can be compelled to participate in rehabilitation under

pain of discipline.

58. As can be seen, the issue of impairment generally and the safety implications of that

impairment are raised by the Policy and by the expert evidence. In my view it is a valid

policy objective to address that issue for safety reasons alone, as the Employer has

attempted to do in this case. It must, however, be consistent with the privacy rights of

employees as well as the responsibility of the Employer to operate and manage a safe

worksite.

59. I offer the following as an approach to the issue of impairment at work, whether it is

caused by alcohol, drugs or some other cause (diabetes, fatigue etc), that is consistent

with the arbitral jurisprudence,

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(a) If there is reasonable cause that an employee is impaired (as a result of drugs,

alcohol or other causes such as diabetes or fatigue) and the impairment creates or

contributes to an unsafe situation, he or she must be removed from the work.

Section 4.19 of the Occupational Health and Safety Regulation is applicable in

these circumstances.

(b) Reasonable cause is a term from the arbitral jurisprudence; section 4.19(2) uses

the term "reported or observed impairment". It is an objective standard so some

evidence is required; a subjective impression is not reasonable cause. The

"Observation Checklist" that is Appendix A to the Policy is a reasonable description

of some of the factors to be considered. However, "Having caused … an

Accident/Incident or Near Miss" at work is not by itself reasonable cause for the

Employer to believe there is impairment. On the other hand, an accident or near

miss associated with a smell of alcohol or marijuana or with symptoms that might

accompany poorly managed diabetes may be reasonable cause. (I note that Dr.

Baker and Mr. Hall in their evidence referred to absenteeism or some patterns of

absenteeism as one possible indication of drug and alcohol use. However, I note

that is not one of the items on the Observation Checklist).

(c) If the basis of the reasonable cause is that the impairment is related to drug or

alcohol use, the Employer is entitled to insist that the employee take an immediate

drug or alcohol test. If the employee refuses he or she can be subject to discipline.

Testing is an important and mandatory part of controlling drug use at work.

However, as Dr. Baker points out, a positive drug test may provide inadequate or

even wrong information because, for example, it might mean that the employee

used drugs sometime in the past, perhaps while not working. (Canadian National

Railway, supra, paragraph 202). In the past alcohol testing has been treated as a

more reliable indicator of impairment at the time of the test. But Dr. Baker points

out that current testing methods can now detect alcohol in urine (as ethyl

gluconuride) for up to seventy-two hours after it is consumed (CLE paper, supra,

page 5.1.3). For this reason it may be that this type of test for alcohol should be

given the same weight as tests for drugs. In any event, the Employer is entitled to

41

act on a positive drug or alcohol test and there is some obligation on the employee

to provide contrary information when faced with a positive test.

(d) If the impairment is a result of other causes (poorly managed diabetes, fatigue etc.)

the Employer can request that the employee produce medical information to

demonstrate his or her fitness to return to work. If the information does not

adequately explain the reason for the impairment, the Employer is entitled to

request further information. The Employer is only entitled to medical information

that is directly relevant to the employee's fitness to work. The employee is entitled

to refuse to provide the information requested by the Employer (where the

impairment is not related to drugs and alcohol) without the penalty of discipline.

However, the Employer may assign the employee to alternate duties where there is

no safety issue or suspend the employee on a non-disciplinary basis until adequate

information is provided by the employee.

(e) In the event there is reasonable cause for the Employer to believe an employee is

impaired as a result of drug or alcohol and another cause, the Employer can insist

on a drug and alcohol test. Discipline may be imposed if the test is refused.

(f) There may be situations where there is a dispute about whether the impairment is

related to drugs or alcohol or another cause. For example, if the Employer asserts

there is reasonable cause the impairment is related to drug use, the employee may

respond by saying that it is related to something else or that it is none of the

Employer's business. The employee may also deny there is any impairment at all.

In these situations there is some obligation on the Employer to give consideration

to the employee's explanation, bearing in mind there is a need for any testing to be

done immediately. The employee may produce other information at this point that

any impairment was a result of causes other than alcohol or drugs, or even that

there was no impairment at all. The employee is not required to produce that

information but may be suspended on non-disciplinary grounds.

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(g) If, after considering the employee's response, the Employer's decision is that there

is still reasonable cause that the impairment is related to drugs or alcohol, the

Employer can insist that the employee be tested. If the employee refuses the test

then he or she can be disciplined. In the event that the employee is faced with

discipline for refusing a test in these circumstances, the remedy for the employee is

to either refuse the test or take it. In either case he or she can grieve that the

Employer acted unreasonably; that is, the basis of the grievance would be that the

employee refused the test because there was no reasonable cause for it, or he or she

took the test under protest to keep working. It may be that the Employer acted

reasonably but was simply wrong and its conduct does not warrant any sanction.

On the other hand, whether there would be some form of damages available to an

employee who underwent a test under protest that turned out to be negative (and

there is no other form of impairment) and in objectionable circumstances, will

have to be decided if those circumstances arise.

(h) In the event a test is done and the result is positive the Employer would then be

entitled to act on this information (bearing in mind the limitations discussed

above) and decide what penalty is appropriate. Again, there is some obligation on

the employee to provide any contrary information at this point.

(i) If a mandatory drug or alcohol test is negative that may be the end of the matter.

However, if the Employer believes there is still reasonable cause to believe the

employee is impaired then the approach above applies.

(j) Finally, if an employee is found in possession at work with unauthorized

substances such as drug or alcohol, he or she may be disciplined even if there is no

impairment.

60. As a final matter under this section, the Union challenges the role of the

Occupational Health Department of the Employer (OHD) generally and in the case of

alcohol and drug testing specifically. The Union submits that the OHD has more

authority under the Policy than an employee's own physician and it is the latter who is

43

in the best position to, for example, provide an opinion in the form of an urgent and

brief medical examination. At one point, it was put to Dr. Galbraith in cross-

examination that the assumption in the Policy was that an employee's physician was

incompetent to provide an opinion on issues of occupational medicine. Dr. Galbraith,

correctly in my view, denied that was and is the case. She was also challenged about her

credentials in occupational medicine and, again, it was suggested to her that a general

physician could answer issues about medical restrictions for work as well as a doctor

with training in occupational medicine. I agree with Dr. Galbraith that occupational

medicine brings training and expertise to health issues that are related to work. A

general physician can undoubtedly provide opinions about an employee's health and his

or her work. But a full-time occupational medicine specialist such as Dr. Galbraith is

able to apply the time and expertise of that specialized area.

61. In summary, with respect to the OHD and the issues in this grievance, I accept that

occupational medicine can bring real value to the medical assessment of employees that

is not available from other doctors. That value applies within the context of reasonable

policy of the Employer as discussed above.

(d) Zero tolerance

62. The Policy is based on a zero tolerance approach to drug and alcohol related

behaviour at work. I reproduce the definition of "zero tolerance" from the Policy as well

as Article 3.04,

"Zero Tolerance" - Employees shall not attend the worksite with any Substance in their body or in their possession. This includes no use of Substances during working hours. ["Substance" is defined to mean, among other things, alcohol or any substance listed on a schedule of the Controlled Drugs and Substances Act including all illicit drugs]. … 3.04 The Company has undertaken to eliminate the threat that substance consumption can present, to both its employees and the business. The Company does not tolerate possession or use of any medically unauthorized substance at the worksite. Any employee found to be in possession of a medically

44

unauthorized substance or drug paraphernalia, or using a substance without medical authorization on the worksite shall be terminated immediately. [Emphasis added].

63. The issue here is whether it is reasonable to include a zero tolerance approach as set

out in the Policy.

64. I note that the Policy is not consistent on this issue. As above, Article 3.04 states that

possession or use of an unauthorized substance will result in immediate termination.

Contrasting this is Article 9.01, "Policy Violations", which states that certain conduct by

an employee may be a violation of the Policy "and may be the basis for the Company to

impose discipline in accordance with the legal principle of just cause" (emphasis

added). Article 3.07 is similar to Article 9.01 when it states that "The Company reserves

the right to discipline, up to an including termination, in the appropriate circumstances

for breaches of this Policy".

65. A previous award between these parties discussed a policy or rule of the Employer

with respect to a decision to impose a zero tolerance approach on drug and alcohol use

and cited a number of other awards (Rio Tinto Alcan Primary Metal (Kitimat/Kemano

Operations) v. National Automobile, Aerospace, Transportation and General Workers

of Canada (CAW-Canada, Local 2301 (Grant Grievance), [2008] B.C.C.A.A.A. No. 170

(Steeves), at paragraphs 68-71). The zero tolerance approach was rejected because the

“hallmark of the modern just cause standard is its capacity to respond, within

reasonable limits, to individual circumstances; put another way, its resistance to

formulistic approaches to questions of industrial discipline” (Raven Lumber Ltd. v.

International Woodworkers of America, Local 1-363 (Bains Grievance) (1986), 23

L.A.C. (3d) 357 (Munroe) at paragraph 40). As well, “the individual facts in each case,

which will include the offence, the work risks, the work rules, the behaviours of the

employee at the time of the offence, and after dismissal, and at the hearing must all be

taken into account” (Re Westmin Resources Ltd. and Canadian Auto Workers, Local

3019 (1994, 46 L.A.C. (4th) 405 at 412; cited in Bullmoose Operating Corp. V.

Communications, Energy and Paperworkers Union, Local 443 (Roddenbush

Grievance), [1999] B.C.C.A.A.A. No. 254 (Greyell) at paragraph 34).

45

66. The principle of just cause is codified in the collective agreement as well. Article 5.01

states that the Employer has the right "to manage and operate its Plants". This right

"includes but is not limited to: … the right to … suspend and discharge employees for

just cause …".

67. There is some authority that suggests that the "overall intention" of the Employer

could be seen as not inconsistent with just cause (J.D. Irving Ltd. and C.E.P., Locs. 104

& 1309 (Drug and Alcohol Policy (Re) (2002), 111 L.A.C. (4th) 328 (M. Picher), at page

347). However, in this case the fact that zero tolerance is specifically defined requires

that the requirements of just cause be clarified. And I do not agree with the Employer

that the statutory and contractual principles of just cause should be superseded by

expert evidence that termination may be what is needed to get an employee to seriously

address his or her substance dependence.

68. Overall, I conclude that the inclusion of zero tolerance in the Policy is not a

reasonable policy because it is inconsistently expressed in the Policy, it is contrary to the

just cause provisions in the Labour Relations Code and it is inconsistent with the just

cause standard of discipline in the collective agreement. Article 9.01 would seem to be a

reasonable alternative approach to be applied to all of the Policy: violations of the Policy

"… may be the basis for the Company to impose discipline in accordance with the legal

principle of just cause". Of course, this conclusion does not mean that termination from

employment for drug and alcohol use will not be an appropriate penalty in some

circumstances.

F. SUMMARY & CONCLUSIONS

69. The Employer is entitled to impose unilateral policy and rules generally and with

regards to the specific issue of drug and alcohol issues in the workplace. They have done

so in the form of the Policy. The Union challenges parts of the Policy as unreasonable

and contrary to the collective agreement, as they are entitled to do.

46

70. The Employer is required by workers' compensation legislation and regulations to

remove hazards from the workplace and an employee who is impaired for any reason

(an illness, fatigue, as well as drugs or alcohol) may be such a hazard. The Employer is

entitled to insist that an employee take an immediate test for alcohol or drug use where

there are reasonable grounds for the test. If the employee refuses the tests then he or

she may be subject to discipline. To the extent that the Policy addresses this established

approach to drug and alcohol testing, it is reasonable.

71. The Policy also requires employees to undergo a "Medical Evaluation". This

evaluation is very broad and it can include an examination of "all possible causes" of any

impairment including fatigue, minor illnesses, medications, depression, stress, serious

illnesses such as diabetes and dementia. Drug and alcohol tests are also included. If an

employee refuses to participate in a Medical Evaluation he or she can be disciplined.

72. The Employer is not entitled to discipline employees for refusal to provide medical

information or participate in medical tests that are not associated with unauthorized

substance use or abuse. If an employee has a serious illness such as diabetes then he or

she can refuse to participate in a medical investigation of that disease, subject only to

being suspended from work on a non-disciplinary basis. I find the Policy unreasonable

because it imposes the penalty of discipline on employees who otherwise would be

exercising their privacy rights to refuse to participate in a medical assessment of their

medical condition without discipline.

73. The medical value of evaluations as contemplated by the Policy is acknowledged but

an employee is entitled to make a decision not to participate in that intrusive kind of

procedure. The Policy overreaches by conflating drug and alcohol tests with more

general medical conditions. An approach whereby the Employer can manage hazards as

they result from any impairment is proposed above.

74. The Policy states, in one part, that zero tolerance applies to employees found to be in

possession of or using unauthorized substances (or associated activities such as

possession of drug paraphernalia). They shall be "terminated immediately". Other

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parts of the Policy specifically refer to the "legal principle of just cause"; just cause is

referred to in the collective agreement and it is a requirement in grievance arbitration

under the Labour Relations Code. The Policy is unreasonable where it does not include

the just cause standard of discipline.

75. For the above reasons the grievance is allowed, in part.

It is so awarded

Dated this 6th day of February, 2011, in the City of Vancouver, Province of British

Columbia.

"JOHN STEEVES" John Steeves