TransLink has been ordered to stop random drug testing David Solomon, a SkyTrain attendant who tested positive for cannabis use during a routine medical examination, after he and his union filed a grievance in November 2018.
The case arbitrator, Arne Peltz, granted the union’s interim application, ordering TranksLink to stop carrying out random drug testing of Mr. Solomon.
According to the interim ruling issued by the arbitrator, Mr. Solomon had tested positive for cannabis during his medical exam in September 2018, and subsequently, was ordered to undergo randomized urine screening tests conducted twice a month for one year. Moreover, he was ordered to undergo counselling despite medical assessments which determined that he did not have a cannabis use disorder. Notably, TransLink’s employee policy does not forbid employees from consuming cannabis outside of work. However, TransLink had argued that a “conservative approach” was necessary to address public safety. The decision states, “This case raises sensitive and complex issues related to the tension between employee privacy and public safety.” Moreover, according to the ruling written by the arbitrator, the decision to randomly test Mr. Solomon was “highly intrusive, controlling his daily routine with call-in obligations and demanding he give bodily fluids twice per month.”
A previous ruling by the Supreme Court of Canada issued in 2013 stated: “The fact a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally.” Moreover, the court had determined that even in “inherently dangerous” workplaces, drug screening can be justified only for particular employees in specific circumstances: “Where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse.”
According to the grievance filed by the CUPE Local 7000 union, the chief medical officer appointed by the company under the railway safety legislation had improperly imposed a drug monitoring program on Mr. Solomon, which was contrary to Railway Medical Rules and the terms of the collective agreement. Moreover, the ruling states Mr. Solomon smokes cannabis three to four times a week and does not use it before or at work.