Arbitrator rules drug test policy too broad

Jun 11, 2020

A recent arbitration decision has determined that parts of the Saskatchewan Health Authority’s (SHA) drug and alcohol testing policy are too broad. The policy was created in 2018, following legalization of cannabis.

The arbitration ruling was made on March 31, following a grievance filed by the Health Sciences Association of Saskatchewan (HSAS) in October 2018. Daniel Ish Q.C., the arbitrator who heard the case, agreed with the union regarding several of its submissions, and particularly regarding submissions related to random drug testing and classification of safety-sensitive employees.

As part of his decision, he had ordered to eliminate or re-write parts of the SHA policy, in a decision which affects approximately 4,000 HSAS employees.

According to Kevin Zimmerman, executive director of labour and employee relations at the SHA, the policy made distinctions between safety-sensitive positions and those which were not. He maintained that the policy was designed to ascertain staff members are fit to perform their duties and ensure the safety of patients and other staff. Although policy violation could lead to termination, Zimmerman stated that the policy is intended to be supportive and is applied with the legal duty to accommodate employees.

The arbitrator maintained that alcohol or drug testing could be required of an employee in a safety-sensitive position if they were involved in a significant incident, whereas it would only be “requested” from employees in non-safety sensitive positions. According to the policy, testing could be done if the employer had reasonable grounds to suspect an alcohol- or drug-related impairment. Moreover, the policy allowed for random testing following addiction treatment or violation of the policy and required employees to self-disclose any addiction disability or use of any medication which could affect their capacity to perform their job. Medical cannabis and prescription medications are included as an exemption in the policy, as long as they do not affect the employee’s capacity to perform their work duties.

However, HSAS has argued that the policy is too broad, and that all 4,000 employee positions could be considered as safety-sensitive, as they come in contact with patients. The union had, therefore, requested from the employer to define the specific safety-sensitive positions. In addition, HSAS argued that the policy provision that non-safety sensitive staff are asked to take a drug test, instead of having one demanded, did not make a significant difference for the employee, since this would be noted on their record.

HSAS felt that the it was too broad to require a mandatory drug test due to a existence of a significant incident, or near miss. They also noted that what was being defined as a “significant incident” was too broad, being an accident, or a “near-miss” which either caused property damage or injury, or had the potential to cause property damage or injury.

The arbitrator had agreed and has also requested SHA to create a classification system to define safety-sensitive positions. “This, [as] it was submitted, is coercive and designed to make it appear that the employee is not cooperating with the employer,” Ish said. Moreover, he added that requiring random drug testing from employees who are currently receiving or had previously been treated for addiction disability or who have violated the policy “goes beyond what the law allows.”

The SHA had stated it is “reviewing the arbitration decision” and “considering its options.”