An Ontario arbitrator recently revisited the limits of an employer’s ability to implement alcohol and drug testing policies. The decision concerned an employer’s Drug and Alcohol Prevention Policy for employees in safety sensitive positions. The sole issue at arbitration was whether the follow-up testing requirement, which required an employee to submit to at least six follow-up tests in the first twelve months following a violation of any portion of the Policy, was valid.
The union argued that employees with “technical violations” of the Policy, but no positive tests for drugs, should not trigger the same safety concerns as, for example, an employee with a substance abuse problem. The union argued for an individualized approach for each employee found in violation of the Policy, taking into account the nature of the violation. The employer argued that any violation of the Policy raised an “issue” regarding an employee’s relationship with drugs or alcohol and gave the employer reasonable cause for follow-up testing. The employer argued that the Policy did take an individualized approach by requiring the involvement of a Substance Abuse Professional (SAP) who handled the initial visit and follow-up consultations, and who could terminate the follow-up testing at any time if the SAP determined that the testing was no longer necessary.
The arbitrator found that the Policy’s “one size fits all” formula for follow-up testing was problematic. Since the wording of the Policy did not clearly articulate the premise of individualized assessments, the Policy treated all individuals as if they were substance abusers. The arbitrator acknowledged that, generally, follow-up testing is reasonable and appropriate for employees who have been found to have a substance abuse problem. However, the appropriateness of testing frequency or duration cannot be determined in the abstract, but rather, is contingent on the circumstances of each case. As a result, the arbitrator directed that the Policy be amended to state that “an employee may be required to submit to unannounced Follow-up Testing following the employee’s return to work as deemed appropriate by the SAP considering all the circumstances of each case”.
This decision affirms an employer’s right to test employees who have substance abuse issues in safety-sensitive workplaces. Nonetheless, employers must consider the particular circumstances of individual employees when drafting and applying these alcohol and drug testing policies.
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