On July 18, arbitrator Carol Jobin issued a ruling authorizing an employer’s zero tolerance policy regarding alcohol consumption of employees in safety sensitive positions and recognizing that fatigue is a factor which may cause impairment.

The Poudres Métalliques Decision

The employer established a new impairment policy which stipulated a zero alcohol limit and included fatigue among the factors which could influence impairment. The impairment policy (Policy) included three documents: the policy text, a document regarding the application of the policy, and a document titled Objective Signs of Impairment Identification Grid (Grid). According to the Policy, when a manager notes employees displaying any of the signs, he may refer them to the company’s Health Unit to undergo a drug and alcohol test. The policy defines the expression "impairment" as "a state that renders employees unable to complete their work in a safe and/or productive manner or a mental or physical state that represents a danger to health, the safety of other people or to the workplace."

Essentially, the Union contested the Grid and its contents, the link between a positive result and impairment, the zero alcohol limit, and the recognition of fatigue as a factor causing impairment.

It is essential to note that all parties agreed that all unionized positions at the company were safety sensitive.

Decision by the Arbitration Tribunal

After conducting a thorough analysis of the evidence provided by both parties, the arbitrator provided a lengthy 136-page decision in which he highlighted the following point:

First, regarding the overall analysis of the applicable test relating to the impairment policy, the arbitrator notes that Quebec arbitral jurisprudence incorporates the "Canadian model" and that it is not inconsistent with the application of the test of article 9.1 of the Charter of Human Rights and Freedoms, which refers to the minimal legitimate impairment of a fundamental right in order to achieve the objective sought. According to the Canadian model, as elaborated upon in the decision on Canadian National Railway Co. and C.A.W.,¹ the validity of a drug and alcohol test is to be assessed in terms of a balancing of interests. The arbitrator focuses primarily on the Shell,² decision and concludes that the application of the Canadian model is not contrary to the test of article 9.1 of the Charter of Human Rights and Freedoms.

Applying this test to the disputed issues, the arbitrator arrives at the following conclusions:

The Grid

The signs listed in the Grid were organized pursuant to the recommendations of the employer’s expert witness and based on medical documentation regarding drug and alcohol use. Although the grid is not exhaustive, it nevertheless allows for the clear definition of reasonable suspicion, based upon which a supervisor could ask an employee to undergo a drug and alcohol test. It encourages a common understanding between the supervisor and the employee of the type of indicators that create reasonable suspicion. The Grid also reduces the risk of arbitrary or unfounded decisions and contributes to the clear definition of the concept of reasonable suspicion. The supervisor’s observations must be verified by a health professional who then decides whether or not, in the particular case, there is sufficient reasonable suspicion to administer the drug and alcohol test.

The arbitrator believes there is a risk of arbitrariness in being able to require a drug and alcohol test solely on the basis of the observation of a single sign, but finds that this risk is reduced by the fact that the supervisor has received training and by the fact that the supervisor’s observations are verified by the Health Unit. In the arbitrator’s opinion, requiring that more than one sign be observed would fail to serve the intended purpose.

As for the assessment of signs, the arbitrator emphasizes that once the supervisor has made observations, it is up to a Health Unit nurse to re-assess the signs and then decide if it is necessary to proceed to a drug and alcohol test. Consequently, the fact that the supervisor observes signs from the Grid does not automatically lead to the employee undergoing a drug and alcohol test. The arbitrator concludes that the nurse’s role is rationally connected to the objective of the protection of health and safety. While the employee experiences an invasion of privacy, the impairment of the employee’s rights is minimal, given the management of the test procedure and the fact that the administration of the test is not automatic but rather depends upon the exercise of clinical judgement by a skilled individual who has followed a procedure which includes a preliminary screening.

Link between a positive result and impairment

It is worth remembering that while an alcohol test can establish impairment at the time of the test, a positive result from a drug test only indicates that the employee took drugs within a certain time span. A drug test cannot measure the degree of impairment, since, notably, traces of certain drugs remain in the body for a long time after being absorbed. In the present case, the Union maintained that the notion of a positive result creates a fiction or irrebuttable presumption of impairment in circumstances where consumption occurred in the past, but there is no intoxication at the time of the test. Invoking the "red flag" theory, arbitrator Jobin concludes that a positive result from a drug test in combination with the finding of objective signs of impairment, although not allowing it to be concluded that the employee was impaired at the time of the test, nevertheless fulfils the condition of rationality in relation to the objective of providing a workplace that respects the health and safety of individuals. It is therefore justified for the employer to apply the outlined measures in the case of a positive test result.

Threshold concentration of zero for alcohol

Relying on expert evidence presented by the employer, the arbitrator establishes a parallel with changes that will soon be in effect in the Highway Safety Code, which prohibit driving or having the care or control of a bus, mini-bus or taxi when alcohol is present in the body, and according to which the allowable alcohol limit is reduced to zero in these circumstances. Considering that the employees occupy safety sensitive positions, the arbitrator concludes that it is reasonable for the employer to require that there be no alcohol present in their bodies.

Fatigue as a cause of impairment

Relying on scientific and medical evidence which shows that fatigue can cause impairment, and the fact that it is generally recognized that an employer can remove workers from the workplace if they are not in a condition to adequately perform their duties and/or they present risks in terms of health and safety, arbitrator Jobin concludes that it is relevant and legitimate to consider fatigue to be a cause of impairment.

Returning to work after a negative result

The employer’s policy provided that an employee would return to work following a negative drug and alcohol test, unless it was demonstrated that the employee was unable to do so. The Union disputed this provision. In the eyes of the employer, a worker who obtains a negative result but who is nevertheless impaired, whether due to fatigue, illness or medication, represents a danger. The arbitrator sided with the employer by stressing that fatigue, the effects of medication, illness and other factors can cause impairment. It is therefore relevant, reasonable and justified to consider their impact on the capacity to resume work, even where the result of a drug and alcohol test is negative.

The Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp & Paper Limited³

The New Brunswick Court of Appeal rendered a judgment on July 7 that confirms a certain arbitral trend to the effect that random drug and alcohol tests in the workplace are justified once the employer establishes that the work activities in question involve danger.

In this case, in 2006 the employer had adopted a policy requiring employees who held safety sensitive positions to take random alcohol tests by breathalyser. Randomness of tests was ensured by having an off-site computer that, over the course of a 12 month period, randomly selected 10 per cent of the employees whose names were on the list of employees holding these critical positions. A policy grievance was filed after an employee was subjected to this test and was shown to have a blood alcohol level of zero.

The arbitration board determined that, to justify random alcohol tests, the employer had to demonstrate that the workplace was ultra-dangerous (thus distinguishing such a workplace from a dangerous one), or that, in the case of a dangerous workplace, there was sufficient evidence to establish the existence of alcohol-related incidents in the workplace. An application for judicial review was allowed by the Court of Queen’s Bench, quashing the arbitral decision. The judge concluded that it is not necessary to make a distinction between a dangerous and an ultra-dangerous workplace, and that once it is established that the workplace is dangerous, the employer is not obligated to provide evidence of previous accidents.

The New Brunswick Court of Appeal confirmed this position and ruled that employees in safety sensitive positions may be subjected to random alcohol tests. The Court made a clear distinction between alcohol tests and drug tests: for the latter, it is impossible to measure the degree of impairment at the time of testing. Following a thorough review of relevant arbitral jurisprudence, the Court emphasized the lack of consistency of arbitral decisions related to this issue in Canada and stated that it is important to provide a solution that promotes certainty in the law. The Court concluded that the approach that focuses on the balancing-up of interests, which was adopted in arbitral jurisprudence and which is applied in the context of mandatory and random alcohol tests, should be endorsed. Considering the balancing of interests, evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Because the plant in question was just such an environment, random alcohol tests were justified.

Tips for Employers

These two recent decisions provide a synthesis of Canadian arbitral jurisprudence about the main issues raised when the validity of an impairment policy is under discussion. While historically, jurisprudence was more cautious regarding drug and alcohol testing in the workplace, recent decisions demonstrate a much greater openness in this regard. Following the Poudres Métalliques decision, employers whose businesses involve safety sensitive positions may now include fatigue among the factors which may cause impairment and may lower the acceptable alcohol consumption limit to zero. The Irving Limited decision, handed down in New Brunswick, for its part, opens the way to random alcohol testing.

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¹Canadian National Railway Co. and C.A.W., 2000 CLB 12141, 95 L.A.C. (4^th) 341, July 18, 2000, Michael G. Picher, Arbitrator.

²Shell Canada Ltd. and United Oil Workers of Canada, local section 121 of CEP, AZ-50589632, T.A. December 2, 2009, Jean-Pierre Lussier, Arbitrator.

³2011 NBCA 58.