Arbitration decisions every CAW Local Employee & Family Assistance (Substance Abuse) Representative should read...

Drug and Alcohol Policy Grievance - required medical evaluations and "zero tolerance"

Arbitrator: John Steeves

February 6, 2011

Points of interest...

The employer's policy said workers that supervisors have reasonable grounds to believe are impaired must undergo a "Medical Evaluation". That evaluation could 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 were included. If a worker refused a Medical Evaluation he or she could be disciplined.

The arbitrator ruled that the employer is not entitled to discipline workers for refusal to provide medical information or participate in medical tests that are not associated with unauthorized substance use or abuse. There would have to be some other reason to believe alcohol or drugs were involved such as the odour of alcohol or marijuana, for example. A worker with diabetes can refuse to participate in a medical investigation of that disease, subject only to being possibly suspended from work for safety reasons on a non-disciplinary basis.

An alternative approach whereby the Employer can manage hazards was proposed by the arbitrator within the decision.  (See the award, pages 39 to 42.)

The Policy stated, 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," said the policy.

The arbitrator ruled the "zero tolerance" policy is unreasonable where it does not include the just cause standard of discipline. Just cause is not only the standard in collective agreements but it is also a requirement in grievance arbitration under the Labour Relations Code in BC.

The grievance was allowed, in part.

To view this arbitration please click here


Termination - Disability due to alcoholism

Arbitrator: R.O. MacDowell

August 28, 2007

Points of interest...

A worker was terminated under an automatic termination clause for not calling in absence within the required time. He was on an alcoholic binge. The grievor owned up to the fact he had an alcohol addiction for which he sought treatment. The arbitrator ruled that the automatic termination clause was subject to the human rights code. Dependency (addiction) is a prohibited ground of discrimination. Accommodation for treatment and rehabilitation is required. In addition, the dismissal violated the terms of automatic termination clause itself because the worker was unable to report his absence due to his medical condition at the time in question.

The arbitrator reinstated the worker to his job and decided not to order conditions such as ongoing alcohol testing. The arbitrator ruled that accommodation has be to individualized. Without individual, fact based evidence to warrant alcohol testing, the arbitrator wouldn't cut conditions "from whole cloth".

To view this arbitration please click here