Another legal case in Canada has affirmed that random drug and alcohol testing is legitimate where a company conducts cross-border transport into the United States.
Although the arbitrator found that the company’s random alcohol and drug testing was proper, consistent with company policy, he did nonetheless reinstate the Grievor who tested positive due to “mitigating factors.”
A brief summary of the case, Canadian National Transportation Ltd and CAW (Fondeur), Re, 233 LAC (4th) follows:
Facts:
- The Grievor was a Tractor Trailer Owner-Operator who was terminated following a positive drug test for marijuana.
- The Company operates regularly into the United States and administers random drug tests in accordance with United States Department of Transport Regulations.
- The Company’s Drug and Alcohol Policy (the “Policy”) reflects this practice, and provides that Owner-Operators who fail to meet the drug and alcohol testing requirements of the United States are subject to termination of their contracts.
- When the Grievor tested positive for marijuana, she explained that she had inadvertently consumed marijuana when she was served baked goods containing marijuana without her knowledge at a friend’s house.
- The Union took issue with the Grievor’s termination, on the grounds that the Company’s investigation was not administered in a fair manner and that the Grievor had not been advised that there had been a split of her sample to allow for a verification test, if she requested.
Held:
- Although the Grievor had never before traveled to the United States, Arbitrator Picher found that the Company did not violate any provision of the Collective Agreement or Canadian law to the extent that it requires its employees who are liable to be assigned to travel to the United States to be subject to American drug and alcohol rules.
- Arbitrator Picher found that the alcohol and drug testing was proper, but determined that there were mitigating factors warranting the Grievor’s reinstatement: she had been open and candid with her employer at all times, there was no basis to challenge her assertion that she does not consume marijuana and there was no suggestion in the evidence that the Grievor had ever been impaired by alcohol or any drug while on duty.
Key Passages:
- “While the general rule of application may be different as regards random alcohol and drug testing for employees in safety sensitive work whose employment is performed entirely in Canada, the specific legal obligations and liability of the instant employer, operating as it does a common service carrier into the United States, did make it subject to American drug testing rules promulgated by the U.S. Department of Transport, which included the requirement to randomly alcohol and drug test employees subject to possible assignment into the US.”