Policy did not support testing for shipyard

Dec 6, 2022

Following a recent B.C. Labour Relations Board (LRB) decision, a Seaspan employee at Vancouver Shipyards in North Vancouver was awarded $15,000 in damages after it was determined that his rights had been violated when he was subjected to a year of random drug monitoring that had not been indicated in the drug and alcohol testing policy. The legal case was opened in 2019, when the employee was spotting another employee, who was driving a modular transporter at the shipyard. While under his watch, the transporter collided with some scaffold stairs at the end of the dock and next to a barge.

While no one was injured, Seaspan’s policy required the worker to undergo drug and alcohol testing after the accident, and the urine test was positive for cannabis use.

Moreover, the worker told his supervisor he had smoked marijuana at 8 PM the night before his shift.

According to the LRB decision, the shipyard policy does not prohibit cannabis use during off hours and provides no cut-off time for use of either alcohol or cannabis before a shift.

However, due to the positive test result which was a breach of company policy, the worker was suspended for 10 days without pay, was required to undergo a medical evaluation, and random drug testing for a year.

The medical report demonstrated that the worker was a regular cannabis user but also offered no opinion on whether he was impaired on the day of the incident.

Later, the worker’s union later filed a complaint about the disciplinary measures taken by the shipyard, specifically regarding the test results and whether they were sufficient to warrant year-long random drug testing.

Furthermore, the shipyard argued that since there is no accepted chemical test for cannabis impairment, the best approach is to test for exposure to cannabis to reduce the risk of employee impairment.

The union argued that the test only showed that cannabis use took place sometime in the previous weeks or months and represented “lifestyle monitoring.”

Notably, the LRB adjudicator pointed out that the two experts working on the case disagreed on many issues, including how long residual cognitive impairment could last after using marijuana.

In addition, the adjudicator ruled the employee should have been warned any positive drug test could result in year-long random testing. “It is common ground in this case that a positive urine test result does not establish impairment, only use of cannabis,” the adjudicator wrote.

The adjudicator also ruled that the results were not enough to support a requirement for a year of random monitoring, and that the worker should receive compensation for the lost wages due to the suspension and for expenses associated with the random drug monitoring.

This is why it is so important to have a clear policy laid out with the requirements, and the consequences to breaches of that policy; just as important is making sure that all employees are aware of the policy, and sign off on having read and understood the requirements, and consequences. This will save employers from getting themselves into trouble such as occurred in this instance.