Drug Testing: Impairment?

Posted by Johannes Schenk on October 19th, 2005 — Posted in Labour Law

The results from alcohol tests are easier to work with than drug test results because of the more direct correlation between alcohol levels and impairment. In the case of testing for drugs you often see the argument that system drug levels do not necessarily correlate to present impairment. Having a pharmacology background I have had some difficulty with this position. There are many conclusions in fact and certain well founded inferences that can be drawn from a positive drug test, none of which fit in well with a safety sensitive work environment. I question the expert evidence underlying the notion that drug levels cannot be correlated to behavioral effect.

Broader considerations also follow on a positive drug test. As an employer can you accept the risk of an employee with measurable drug levels working in a dangerous environment? As an employee do you really feel that confident that you are 100% under such circumstance? I have often wondered (and not researched) what the effect of management continuing to employ an employee with a measured level of a drug in their system would do to any given insurance contract or warranty in effect at the time of the positive drug test. What does such a test result do in terms of C-45 liability? No doubt we will get an answer to these question at some future time.

I recently came across an Alberta arbitration, Suncor Energy Inc. v. Communications, Energy and Paperworkers Union v. Local 707 (Pearson Grievance), [2004] A.G.A.A. No. 35, that deals with the issue of positive drug test results and impairment or lack thereof.

Briefly, the grievor was on a return to work agreement for a previous drug related incident. He was caught again with a positive marijuana test and was terminated. The grievor had admitted to continuing use of marijuana. The parties also agreed that the positive marijuana test did not indicate that the grievor was impaired at the time of the test ( I don’t know what my pharmacology profs would have to say about that?). Arbitrator Jones noted that the employer terminated the grievor because, on the facts, the employer could not be sure that the grievor would not at some time be impaired at work. The grievance was then dismissed on that basis.

The case is interesting because it upholds a dismissal on the basis that you can’t be sure that an employee with a positive drug test result will not be impaired at some time in the future. This sidesteps the commonly argued defence that a positive drug test doesn’t indicate impairment.

Employers, unions and employees should take note of the reasoning and result of this case.

1 Comment »

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Interesting topic… I’m working in this industry myself and I don’t agree about this in 100%, but I added your page to my bookmarks and hope to see more interesting articles in the future

Posted on September 11, 2006 at 10:52 am

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