Substance Abuse in a Safety Sensitive Workplace

Posted by Johannes Schenk on January 31st, 2006 — Posted in Employment Law, Human Rights Law, Labour Law

Employees with substance abuse issues are a nightmare for employers charged with a workforce operating in a safety sensitve workplace. Employers must accommodate such employees to the point of undue hardship. Having said that what is undue hardship in a safety sensitive environment?

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., [2005] A.J. No. 871, is a recent case dealing with accommodation issues in a safety sensitive environment where a worker was terminated for substance abuse related work performance issues.

The case provides a good framework for dealing with this issue.

Third Party Drug Policy

Posted by Johannes Schenk on January 30th, 2006 — Posted in Human Rights Law, Labour Law

It is often the case that an employer will enter into an arrangement with another entity that will require the employer’s workers to conform to other entity’s policy and workplace rules. What if those rules conflict or encroach upon matters covered by a collective agreement? What if those rules are discriminatory? How can those rules be challenged?

International Assn. of Machinists and Aerospace Workers, Local Lodge 99 v. Finning International Inc. , [2005] A.J. No. 1382, deals with the matter of a third party drug policy. Here Finning had entered into an equipment maintenance contract with Albian Sands. Albian Sands had a site access policy that required personnel going onto the site to be subject to drug testing. Finning did not have its own drug testing requirement at the time it entered into the Albian Sands arrangement. Finning employees were required by Finning to conform to the Albian Sands policy if they were going to work on the Albian Sands site.

The Court upheld an arbitration decision that determined that the matter was arbitrable insofar as Finning’s conduct relating to Albian Sands’ policy was a breach of the collective agreement. There was no jurisdiction to review the Albian Sands policy, despite that policy being referred to in Finning Job postings and Finning entering into a contract that referred to that policy.

The result is somewhat curious; arguably the Albian Sands policy might be incorpoarted into the collective agreement by reference allowing for a review of the policy at least with respect to the extent that Finning relied on it?

Blackberry in Trouble

Posted by Johannes Schenk on January 24th, 2006 — Posted in Uncategorized

Jesse James had his Colt .45 and the lawyers had their Blackberrys, so the historians may soon write. For those of you in the habit of Blackberry use see this Washington Post article on the recent Blackberry patent infingement case.

It’s not clear from the article how the case will affect Canadian Blackberry users.

Obesity as a Disability

Posted by Johannes Schenk on January 23rd, 2006 — Posted in Employment Law, Human Rights Law, Labour Law

The Canadian Federal Court of Appeal recently considered the matter of whether obesity is a disability in McKay-Panos v. Air Canada, [2006] F.C.J. No. 28. The case is an appeal from a decision of the Canadian Transportation Agency which held that obesity was not a disability for the purpose of the Part V of the Canada Transportation Act.

To cut a long story short, the Federal Court of Appeal has set aside the original decision and referred the matter back to the tribunal to rehear aspects of the case.

Random Drug Testing

Posted by Johannes Schenk on January 20th, 2006 — Posted in Employment Law, Human Rights Law, Labour Law

Entrop dealt with the issue of random drug testing in the work place. The main and lasting idea that came from this case was “drug testing for cause”.

Imperial Oil Ltd. and C.E.P., Loc. 900, 138 L.A.C. (4th) 122, is a follow up case that deals with the same issues and raises some interesting points that seem to have been lost in the wake of the Entrop decision. For instance, Imperial Oil continued to randomnly test for alcohol by breathalyzer. The company did, however, drop urinalysis drug testing. The difference being that the breathalyzer could detect impairment whereas the urinalysis testing could not. The case also makes the important distinction that Entrop dealt with drug testing under the Human Rights legislation and not the collective agreement. The most interesting part of the decision relates to Imperial Oil’s intention to use a mouth swab test to monitor marijuana use. Apparently the mouth swab test does detect impairment. Imperial Oil takes the position that the test therefore falls within the parameters allowed by Entrop.

The decision is just a preliminary award but nevertheless addresses some very important points. It will most interesting to see if the main case continues on and what result will come from it.