Legal News

Employer’s Drug and Alcohol Testing Policy Survives Union Challenge
October 6, 2004

Arbitrator Colin Taylor QC has issued an award upholding Weyerhaeuser Canada’s comprehensive drug and alcohol testing policy, with some exceptions. Under the policy, employees are required to submit to drug and alcohol testing in five circumstances: (1) when applying for or transferring into a safety-sensitive position; (2) where there are reasonable grounds to suspect actual impairment at work; (3) after an accident or incident has occurred in order to rule out impairment as a potential cause; (4) as part of “return to duty” conditions; and (5) as part of follow up conditions. The policy does not provide for random testing.

The union alleged the policy was an unreasonable invasion of employee privacy and should be struck down. The arbitrator disagreed.

Balancing the company’s legitimate right to introduce testing in a safety-sensitive environment against employee privacy interests, the arbitrator found that the policy was reasonable, for the most part. For example, the policy did not impose automatic discipline or discharge for a positive test, and the policy recognized the company’s duty to accommodate disabled employees.

However, certain provisions, such as a prohibition against employees using alcohol within eight hours preceding their reporting time, were held to be unreasonable and arbitrary. Also, while upholding the employer’s right to conduct post-accident testing to rule out impairment as a potential cause, the arbitrator held that such testing should only occur where the employee’s condition is a “reasonable line of inquiry”.

This decision contains an extensive review of arbitral developments in drug and alcohol testing and identifies components of a valid policy. However, as there was no specific instance of employee misconduct before the arbitrator, it remains to be seen whether the policy will be upheld in a particular application.

Industrial, Wood and Allied Workers of Canada v. Weyerhaeuser Co., [2004] B.C.C.A.A.A. No. 164, August 11, 2004 (Taylor)