From The Hotline, Spring, 2009 by Rebecca Murdock,
Local 258 Legal Counsel In BC there is no general right of employers to randomly screen for illicit drugs or alcohol. However an important exception to this rule exists for the employee who has an acknowledged problem with substance dependence or abuse. Where such an employee is returning to work after a period of treatment or absenteeism associated with drugs or alcohol an employer can reasonably request a period of random screening to establish fitness for work. A further exception arises in safety sensitive environments where employers may require a single random test following a major accident. The Exxon Valdez disaster in the late 1980’s prompted this policy change in the oil and gas sector. Random testing is an incursion into an employee’s privacy and dignity, but arbitrators have found such concerns are overridden by the employee’s obligation to participate in accommodating his/her own disability in a return to work situation. All parties: the employer, Union and employee must cooperate in optimizing conditions of employment for an employee suffering from disabling drugs or alcohol. Recently IBEW Local 258 arbitrated the case of a private sector employee with recently diagnosed bi-polar mood disorder (BMD) for which he took prescribed medication. The medical evidence established that the Grievor occasionally used pot and drank beer, both of which were not recommended by medical experts. In 2004 the Grievor (i.e. an employee who files a grievance) sought to return to work after a period of absence and the Employer objected on several grounds saying the Grievor needed to abstain completely from illicit drugs and alcohol which were negatively affecting his mental health. That case was litigated in 2005 and the Grievor was returned to work with certain conditions. In 2009 the Employer threatened to fire the Grievor who had terminated the random tests upon his doctor’s recommendation. At the hearing before Arbitrator Burke, the Employer argued the testing should continue for the duration of the employment relationship and that everyone knew the Grievor continued to use alcohol on a recreational basis. Arbitrator Burke disagreed, accepting the expert medical testimony of Dr. Hedges (New Westminster). Dr. Hedges testified that a 2-year period of testing was standard in most industries, and there was no medical basis on which to recommend continued testing for the Grievor who had tested negative on every single test since his return to work in 2005. The decision is precedent setting because it is the first of its kind to establish the 2-year benchmark for random testing (during which there were no relapses). It is also precedent setting because Arbitrator Burke rejected the Employer’s application to retain Dr. Hedges’ medical reports for its own purposes including possible future litigation. The Union successfully argued that the Grievor’s right to privacy should be restored at the conclusion of the hearing, and the Employer had no ongoing entitlement to the Grievor’s medical records. Accordingly Arbitrator Burke ruled that the medical reports in the Employer’s possession be destroyed or returned to the Union at the conclusion of hearing. | 
