Earlier in September, an arbitrator overturned the suspension of a Canadian Pacific Kansas City (CPKC) Railway locomotive engineer, as well as the company’s order for the employee to undergo six months of random drug testing. According to the ruling, the employee was not impaired during work hours despite having tested positive for cannabis in a post-incident drug screening.

In March 2022, the locomotive engineer J.D. from Saskatchewan tested positive for THC in a urinalysis following an incident where he had failed to secure his train. 

While the oral swab and breathalyser results were both negative for THC, urinalysis showed that he was positive for cannabis metabolites.  J.D. was initially suspended for 30 days, and the company also imposed six months of random drug testing as part of its disciplinary measures.

However, the union brought the grievance to arbitration, and argued that since J.D. was not found to have been impaired, a penalty of a thirty-day suspension and six months of random on-the-job testing was unreasonable. In turn, CPKC argued that the random testing was appropriate for safety reasons, due to the dangerous nature of the work.

While J.D. admitted to consuming a cannabis candy approximately 16.5 hours before his shift, his oral swab and breathalyzer results were negative, indicating no impairment at the time of the incident. Moreover, the only positive result was from the urinalysis, which detected the presence of cannabis metabolites. Therefore, the arbitrator ruled that these findings did not prove impairment during his work duties.

“The presence of drugs or alcohol in the system of an employee does not permit the employer to impose discipline,” the ruling states. “A positive urinalysis test would indicate that the subject ingested marijuana at an earlier point, perhaps days or weeks in the past, without any indication as to the precise time, place, or quantity of the consumption. Standing alone, therefore, a positive drug test cannot be just cause for discipline.”

While CPKC argued that safety concerns justified both the disciplinary measures and the random testing, due to the safety-sensitive nature of the job position, the arbitrator concluded J.D. conducting himself in a candid manner during the investigation and the lack of evidence showing impairment negated the justification for such testing.

“Privacy rights will bend to the need for workplace safety in the face of either workplace or personal conditions which require testing,” wrote arbitrator James Cameron. “Absent those workplace or personal conditions, bodily integrity will be respected.”