Canada - "Human rights obligations are not limitless, and they are less tolerant of addiction and accompanying relapses, that's a helpful commentary for employers to say you don't have to deal with this forever."
 
So says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver, after an arbitrator upheld the dismissal of a railway worker who denied he had a second relapse despite testing positive for drugs and alcohol under a last-chance agreement.
 
The worker was a machine operator helper with Canadian Pacific Railway (CP), hired for the safety-sensitive position in 2010.
 
In June 2018, the worker underwent a drug test that came back positive for cocaine.
 
He was held out of service and referred for rehabilitation treatment for a substance use disorder.
 
He completed treatment in early 2020 and CP agreed to return him to work.
 
The worker entered into an "Acknowledgment of Relapse Statement of Understanding" (SOU), which required him to abstain from all use of alcohol or drugs, participate in the railway's relapse prevention program, submit to unannounced biological monitoring testing, and to immediately notify CP of any relapse.
 
A breach of the SOU could be a violation of CP's alcohol and drug policy, and it was to be in effect for two years.
 
CP did not invite the union to be involved in the SOU, as it had privacy concerns with sharing the worker's confidential medical information.
 
Random Testing Under Agreement
 
In July 2020, the worker tested positive for cocaine.
 
CP investigated and the union learned of the SOU when it represented the worker.
 
The worker admitted to "slipping up" and using a gram of cocaine four or five months previously.
 
CP did not discipline the worker due to issues with the timeline and the union did not grieve the SOU.
 
On 3 Aug 2021 the worker submitted to hair follicle testing, which was negative.
 
Another round of hair follicle testing on 3 Nov 2021 came back positive for cocaine and alcohol.
 
Four different tests were performed on different hair segments, but all came back positive with varying levels of the drugs.
 
The worker told CP's medical review officer that he didn't use any drugs or alcohol and he suggested that performing oral sex on his girlfriend who smoked cocaine may have led to the positive test result.
 
The medical review officer said that couldn't happen unless her genitals were sprinkled with cocaine.
 
The worker also said that he "never had alcohol", and didn't drink, so the positive result for alcohol was inexplicable.
 
The medical review officer asked if the worker wanted the samples retested, but the worker declined because the re-test would be performed by the same tester that he felt had already made a mistake.
 
He also suggested that the testing had resulted in "false positives."
 
Private Drug Tests Negative
 
CP conducted an investigation in early December and the worker had private tests done, including samples of a fingernail and body hair.
 
Those tests were negative, although additional private tests came back positive for methamphetamines and marijuana.
 
CP consulted a medical expert from the third-party testing lab, who explained that the results of the worker's private tests were different because different types of samples were tested and more time had elapsed.
 
The expert also said that "testing an unknown location of hair, and an unknown length (a few days after the positive test), does not in any way prove that there was no use of cocaine."
 
The original samples were tested again and were still all positive, showing heavy use of alcohol and cocaine in August and then declining.
 
The worker maintained that he had complied with everything in the SOU, and had "not relapsed in the past 14 months, saying he was confident that the original test results were false positives.
 
CP held a supplementary investigation, which found that false positives at its third-party tester were virtually impossible, a false positive had happened two to three times in 15 years.
 
Breach of Drug and Alcohol Policy
 
Given the difference in the samples used for the worker's private tests, and the fact that they were conducted later, CP found no reason to discount the 3 Nov 2021 test results.
 
On 31 Jan 2022 it dismissed the worker for violating the drug and alcohol policy, the SOU, and the Canadian Railway Operating Rules.
 
The union grieved, arguing that the worker had complied with all of the conditions of the SOU and the worker's private tests showed that CP's results were false positives.
 
The union also questioned its enforceability later in the arbitration process, arguing that CP could not make any agreement with the worker relating to his employment without the union's involvement.
 
The arbitrator found that since the union didn't raise any challenge when it learned of the SOU, it couldn't do so at that point.
 
"They knew about the SOU and they didn't ever raise it as an issue, so it was too late to then turn around and now say that it was a problem," says Samuels.
 
"They just waited too long to make an issue of it."
 
Medical Opinion
 
The arbitrator also found that the preliminary and supplementary investigations were fair.
 
When the worker alleged that the test results were false positives, CP sought out a medical opinion, and the worker didn't provide any evidence to refute it.
 
The arbitrator noted that the worker chose not to have the original samples re-tested, and the results of his private tests did not establish that the original tests were false positives.
 
In addition, the medical expert provided reasonable explanations for the different test results, and some of the worker's own private tests were positive for methamphetamines and marijuana, making the worker's claim that he had abstained from drugs and alcohol not credible, the arbitrator said.
 
"The ultimate finding was they weren't comparing apples to apples, the private tests didn't necessarily prove that what the employer had was not right," says Samuels.
 
"The problem was that it was done at a different time, with a different process, and the employer is entitled to say, This is what I'm using."
 
The arbitrator agreed that the worker's substance use disorder was a disability that required accommodation and the worker had two relapses in July 2020 and August 2021.
 
The second relapse involved both cocaine and alcohol in excessive amounts, with the heaviest amount in August 2021 shortly after he had tested negative.
 
This implication was that the worker started using a significant amount right after his August test, and then reduced his use with the hopes of testing negative on his next one in November, meaning that he failed to disclose his relapse for months, the arbitrator said.
 
The arbitrator also found that the worker was dishonest in failing to disclose his relapse, claiming that the tests were false positives, and denying any drug and alcohol use.
 
This demonstrated no insight, or accountability for his relapse, or the SOU, the arbitrator said.
 
Dishonesty Contributed to Undue Hardship
 
The worker's dishonesty was a key to establishing undue hardship, says Samuels.
 
"The worker was in a safety-sensitive position, and they already had a letter of understanding with him about what would happen next if he was in breach," she says.
 
"It happens more in arbitration than in court cases, where if the worker is remorseful, or owns their mistakes, they often get off the hook, but this guy was found to be dishonest."
 
The arbitrator determined that CP's interest in maintaining a safe workplace in a safety-sensitive industry outweighed its duty to accommodate, given the worker's lack of honesty and forthrightness with a second relapse.
 
CP took reasonable steps to accommodate the worker up to the second relapse, at which point it became an undue hardship to continue, said the arbitrator in upholding the dismissal.
 
"The employer had put up with it, they had given him a letter of understanding, and he relapsed in an extreme way with both alcohol and cocaine, he's in a highly safety-sensitive industry, so they're entitled to balance their rights against that," says Samuels.
 
"The arbitrator found that the employer had accommodated up to the point of undue hardship, and again, if he had demonstrated any remorse or insight, maybe it would have been better for him, but not without that."
 
When dealing with an employee with an addiction, a letter of understanding, or last-chance agreement that clarifies the stakes can help if it becomes too difficult to accommodate them, says Samuels.
 
"A last-chance agreement has to be carefully drafted and worded, and if you have that in place, then you're going to be in a much better position to dismiss the employee if they relapse," she says.
 
"You're hopeful that they're not going to relapse, and they're going to recover, but often this is exactly what happens, there are so many strikes, and then you're out."
 
Jeffrey R. Smith.