Arbitrator rules parts of SHA drug test policy too broad

The Prince Albert Parkland Health Region main office. Herald File Photo

The Saskatchewan Health Authority (SHA) is reviewing a recent arbitration decision that found parts of its drug and alcohol testing policy overly broad.

The decision, dated March 31, comes out of a grievance filed by the Health Sciences Association of Saskatchewan (HSAS) on Oct. 30, 2018. The new drug policy was brought in shortly after the legalization of recreational cannabis.

In his decision, arbitrator Daniel Ish Q.C., who heard the case on Jan. 21, agreed with the union on several of its submissions, especially those regarding random testing and the classification of safety-sensitive employees.

He ordered that sections of the policy be struck down or rewritten. The decision affects about 4,000 members of HSAS employed by the SHA.

The health authority’s executive director of labour and employee relations, Kevin Zimmerman, argued on behalf of SHA that the policy made distinctions between safety-sensitive positions and those that are not. He said that the policy was designed to ensure staff members are fit for work and not impaired to put the safety of patients and staff at risk. While the policy could lead to termination, Zimmerman emphasized that it’s designed to be a supportive policy, and is applied with the legal duty to accommodate.

He told the arbitrator that the policy took the legislation into account and looked at other policies, such as that of Nutrien and of the City of Saskatoon.

According to Ish’s summary of the drug policy, alcohol or drug testing may be required of an employee in a safety-sensitive position involved in a significant incident, whereas it would only be requested of those in non-safety sensitive jobs.

Under the policy, testing could also be done if the employer had reasonable grounds to suspicion of an alcohol or drug-related impairment.

It also allowed for random testing after the treatment of an addiction disability or a violation of the policy.

The policy also required employees to self-disclose and addiction disability and the use of any medication that may affect their ability to perform job duties.

It includes exemptions for medically-prescribed cannabis or other drugs, as long as they do not impair someone while they’re at work.

HSAS argued that certain provisions were too broad.

 They also argued that the designation by SHA that all of its 4,000 members are safety-sensitive was unreasonable.

They said jobs such as TV technicians, music therapists and dietitians shouldn’t be considered as safety-sensitive as those who work directly with patients.

SHA, though, said that all HSAS members are safety-sensitive because they would have at least some direct contact with patients. The union asked the employer to specify which positions would be safety-sensitive.

Ish agreed. He said there had been no work done to justify the finding that all HSAS positions are safety-sensitive and ordered that SHA set out which classifications or positions it considers to be safety-sensitive.

 Even if they weren’t safety-sensitive, HSAS argued that the provision that non-safety sensitive staff be asked to take a drug test instead of having one demanded made little difference, as a refused request would be noted on an employee’s record anyway.

“This, it was submitted, is coercive and designed to make it appear that an employee is not cooperating with the employer,” Ish wrote.

The union argued that employees cannot be expected to know when their employer has a right to make a demand as opposed to a request.

They argued that the employer cannot get around not having any legal right to make a request by saying it’s optional, especially when a refusal to that optional request is put on the record.

They also argued that the section allowing for random testing for all employees after a violation of the policy or after treatment for addiction goes against rulings made in previous decisions. HSAS argued that the existence of a significant accident, incident or near-miss itself is not enough to require a mandatory drug test.

They added that the policy’s definition of a significant incident included an accident, incident or near-miss causing property damage or the potential for injury or property damage was too broad.

HSAS took issue with the addiction disability disclosure requirement, arguing that it could be read to include more than the current active addiction disabilities. They argued that someone who may have battled alcohol addiction in the past but who dealt with it would have to disclose that addiction anyway.

SHA countered that their policy followed all previous decisions respecting employee privacy rights and that alcohol and drug testing would only be required when the facts fall within what other bodies have decided.

The policy, they said, only required testing if there is reasonable cause to suspect the employee may be impaired if an employee was involved in an accident or incident that was not clearly caused to mechanical, structural or environmental factors and when testing is part of a return to work agreement.

Testing will only occur when there are reasonable grounds, SHA said, such as direct observation of possible impairment, or where there has been an accident, incident or near-miss.

“The employer’s overall position is that the policy as a whole is reasonable and in accord with Canadian judicial and arbitral caselaw,” Ish said of SHA’s arguments.

“It was submitted that to the extent the union feels an improper test has been taken, it remains open to it to challenge any testing by an individual grievance. To date, none have been filed. 

The employer also submitted that random testing under the policy will not be enforced except as part of a return to work plan. It was acknowledged, however, that the policy includes provisions for random testing requests which, it was submitted, are recognized by law as appropriate.”

Ish agreed with some of the union’s arguments.

He found, for instance, that the issue of requests versus mandatory requirements was unreasonable.

“The subtleties of the language used by managers and supervisors in the workplace may not capture the significance of acceding to an alcohol or drug test,” he wrote.

“‘Requests’ create a grey area of rights that few employees would be expected to understand and appreciate.

Further, in no circumstance should refusal be noted as part of the investigation because it is highly prejudicial to have this information on record where there is no right to make the request.”

He ruled that provisions allowing a request to test non-safety sensitive employees were unreasonable. He made the same determination about the SHA’s random testing provision, writing that it must be removed from the policy or re-worded to reflect that random testing is only allowed for employees who are under an agreed-upon rehabilitation program.

He also suggested re-wording the definition of the significant incident as it didn’t take magnitude and gravity into account as factors. He also ruled against the section that appeared to require the disclosure of past addictions in addition to current and active addictions.

Any provisions ruled unreasonable had to be re-written or struck from the policy, Ish said.

He didn’t side with the union’s entire grievance. Other provisions dealing with license suspensions, active addiction disabilities and information from health care providers were reasonable, he found.

Ish wrote that the Supreme Court has ruled that an employer’s authority to require random testing has been limited to “extreme circumstances” such as an out-of-control drug culture in the workplace or where it is part of an agreed rehabilitation program.

Requiring random testing for anyone who has been treated for an addiction disability or who has violated the policy in any way “goes beyond what the law says is permissible,” Ish wrote.

He added that the random testing of employees who are receiving or who have received addictions treatment also goes beyond what the law allows.

He then turned to the SHA’s definition of what is considered a significant incident.

“The definition of “Significant Incident” nullifies the adjective “significant” in its title because it includes any damage to person, property, reputation, security or the environment no matter how trivial,” he wrote.

“The definition includes the potential to cause damage no matter how slight that potential may be.”

When reached for comment, the SHA said it was “reviewing the arbitration decision” and “considering its options.”

It did not comment on whether it would revise the policy or appeal the arbitrator’s decision.