IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
-and-
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS’ UNION OF CANADA (CAW-CANADA) LOCAL 100
(the “Union”)
RE: POLICY GRIEVANCE
WORKPLACE ALCOHOL AND DRUG POLICY
ARBITRATOR: MICHEL G. PICHER
APPEARANCES FOR THE COMPANY:
Simon-Pierre Paquette - Counsel
Ross Bateman - Director, Labour Relations
Kathy Smolynec - Senior Manager, Occupational Health
Jackie Anderson - Occupational Health Nurse
Ray Baker - Physician
APPEARANCES FOR THE UNION:
Brian Stevens - National Representative
Ken Hiatt - President, Local 100
Drew Ratajewski - Vice-President, Local 100
Hearings in this matter
were held in Montreal, Quebec on December 10, 2012 and December 14, 2012.
AWARD
The Union grieves the Company’s policy whereby employees who drive as part of their employment and lose their driving privileges must report the loss of their licence to their supervisor and thereafter be subject to a medical assessment to determine whether they must follow an addiction rehabilitation programme. The policy under dispute was introduced in 1997 and was reviewed in two subsequent arbitration awards, SHP 530 and SHP 690, decisions of this Arbitrator and Arbitrator Christopher Albertyn, respectively.
At issue are the impaired driving provisions of the Company’s Policy to Prevent Workplace Alcohol and Drug Problems. The provisions here under grievance read as follows:
Impaired Driving Charge or Convictions
It is prohibited to be on duty or to be in control of a CN vehicle anytime while under the influence of alcohol or drugs, including the after-effects of such use. All employees who drive a company vehicle, or drive on company business are required to maintain a valid driver’s license. Any person required to maintain a valid driver’s license must report the loss of the privilege to drive to their supervisor.
For employees who require a valid driver’s license in the performance of their duties or for employees who operate railway equipment and who lose the privilege to drive off-duty, off CN premises and not in a CN vehicle, the following provisions will apply:
Impaired Driving Charge
Any employee in these circumstances who has been charged with an impaired driving offence or whose license has been suspended (including but not restricted to blowing over the legal BAC for driving in the jurisdiction where the charge occurred, driving while impaired, or refusal to blow into a breathalyser) must inform a supervisor within one working day and must report to a company-designated medical centre within three working days of the date of the charge.
A medical professional will undertake an assessment to determine if there is a need for a structured assistance program. If there is a need, the employee will be directed to a treatment and rehabilitation program through Medical Services. Medical Services will determine whether or not the individual will be allowed to drive or operate equipment on behalf of the company until the limitation is lifted. In cases where an employee is prohibited from doing their job pending assessment, they will be assigned alternative duties if available and appropriate. In those cases where employees fail to report the charge and the company becomes aware of the situation, they will be subject to corrective action up to and including dismissal.
In fact the policy, as reproduced above, was its original form. In July 2012 the Company issued the following, more condensed, version of the policy:
Impaired Drive Charge or Conviction
Employees who require a valid driver’s license in the performance of their duties or who operate railway equipment and where driving privileges are lost or suspended due to an impaired driving charge or conviction while not on duty, nor in a CN vehicle, nor on CN premises, must immediately report such loss to their supervisor. A medical assessment will then determine whether the employee suffers from a substance use disorder.
As noted above, the Company’s initial promulgation of its policy to prevent alcohol and drug problems was published on January 28, 1997. It was challenged in a number of respects by the Union and became the subject of a comprehensive award by this Arbitrator, SHP 530, dated July 18, 2000 (Canadian National Railway Co. and Canadian AutoWorkers, (2000), 95 L.A.C. (4th) 341 (M.G. Picher)). In that challenge the Union did not raise any objection to the impaired driving provisions of the policy, save to dispute the Company establishing the cut-off level of 0.02 Blood Alcohol Content (BAC) as the cut-off level for individuals in risk sensitive positions. That level was also established for employees who are returned to duty subject to an unannounced testing program. No challenge was then taken to the impaired driving and loss of licence provisions which are here under dispute.
The impaired driving and loss of licence issue was eventually grieved, and proceeded initially before Arbitrator Christopher Albertyn whose award has been designated as SHP 690. Arbitrator Albertyn framed the issue in the following terms in the second paragraph of his award, dated April 25, 2012:
CN has a Policy to Prevent Workplace Alcohol and Drug Problems (“the policy”). It is a policy that is updated from time to time. A re-writing occurred in 2004. As part of the policy, if an employee loses driving privileges, the employee is required to attend and subject themselves to a company arranged, medical assessment. The grievance contends that this requirement is overbroad and contrary to the collective agreement and the Canadian Human Rights Act, RSC 1985, c H-6. The grievance claims that employees should not be required to submit to what the Union regards as intrusive medical, biological, physical and psychological assessments, arranged by the Employer. The substantive issue is whether the Employer can require employees, whose driving licenses are suspended, to attend an assessment, that might include a medical assessment by a physician appointed by the Company.
Ultimately, after extensive consideration, Arbitrator Albertyn concluded that the issue raised by the Union before him was in fact a matter over which I retained jurisdiction in my award in SHP 530, the decision which disposed of the issues raised by the Union at the inception of the Company’s policy. In that regard Arbitrator Albertyn wrote as follows, at para 57 of his award:
I conclude that the questions asked in this section of this award are best answered by Arbitrator Picher. They are questions of the extent to which he retained jurisdiction, hence they are subject to his interpretation of the scope of the jurisdiction he retained. He remained seized of the interpretation of SHP 530. In my respectful view, he should determine whether he retained jurisdiction to hear the issue described above.
Neither party takes any issue with respect to my jurisdiction to dispose of this grievance. In response to the question put by Arbitrator Albertyn, I hereby confirm that I did retain jurisdiction to hear the issue which is raised in the instant grievance. This grievance plainly involves a challenge to the policy as it existed at the time of the award rendered in SHP 530.
Paragraph 15 of the conclusion of my original award expressly states the following:
15. By agreement, I also stay any determination of issues raised by the Intervener with respect to the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges, pending further discussion of those issues between the parties.
The Arbitrator retains jurisdiction with respect to the interpretation or implementation of any aspect of this award.
At the outset of its submission the Company stresses the passage of time since the original award SHP 530, and in particular the fact that neither this Union nor any other union has raised any contestation of the impaired driving provisions of the policy. It notes that the collective agreement has been renewed some four times since SHP 530, without any challenge being pursued by the Union in that regard. It notes that the instant case flows from a grievance filed in 2009 dealing with the application of the impaired driving provisions of the policy to a particular employee within the Union’s bargaining unit. It appears that the policy component of the grievance proceeded before Arbitrator Albertyn who, as noted above, referred the matter back to me to be heard on the merits.
Having considered this aspect of the Company’s submission, I find it difficult to agree with the Company’s position as to the right of the Union to now bring this matter forward for determination. I consider it important to note that since SHP 530 issued in the year 2000 there has been some significant evolution of the law with respect to the suspension of driving privileges. At the time of the hearing of the dispute in SHP 530 an individual could lose his or her driving privileges for refusing to undergo a breathalyzer test or for registering a 0.08 BAC on the taking of a breathalyzer screen. More recently, however, roadside licence suspensions can occur in circumstances which fall short of the traditional 0.08 BAC threshold.
In Ontario, for example, as of May 1, 2009 an individual who registers a BAC concentration of 0.05 to 0.08 is subject to an immediate suspension of his or her licence for up to three days for a first occurrence, seven days on a second occasion and 30 days for a third similar event. In addition, in the event of a third or subsequent infraction within a period of five years, individuals are also subject to a six month ignition interlock licence condition following the period of licence suspension, as well as being required to undergo a mandatory alcohol treatment program. In Alberta, drivers who register a BAC between 0.05 and 0.08 are subject to a three day licence suspension and a three day vehicle seizure on a first offence, a 15 day suspension and seven day seizure of their vehicle on a second offence and suspension of 30 days and a seven day vehicle seizure for third and subsequent offences. Additionally, in that province, new drivers are required to maintain a blood alcohol level of zero. Should they be stopped with any level of blood alcohol registered, they are subject to an immediate 30 day driving suspension and a seven day vehicle seizure. As can be seen from these provisions, which the Arbitrator refers to merely by way of example, impaired driving provisions have tightened substantially since the award in SHP 530, in July of 2000.
The Union maintains that the Company’s policy as it relates to reporting the loss of a driver’s licence and the ensuing requirement to participate in a medical assessment by the Company’s physician constitute an improper and unreasonable exercise of management’s rights, extending beyond the legitimate business interests of the Company. Its representative stresses that boards of arbitration have repeatedly affirmed that it is not open to an employer to subject an employee to a medical assessment, other than for the legitimate purpose of determining whether an employee is fit for duty. In that regard reference is made to the following cases: Monarch Fine Foods Co. Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, (1978), 20 L.A.C. (2d) 419 (M. Picher); Riverdale Hospital and Canadian Union of Public Employees, Local 79, (1985) 19 L.A.C. (3d) 396 (Burkett); Ontario (Ministry of Natural Resources and O.P.S.E.U., an award of the Grievance Settlement Board, (Dissanayake), dated May 20, 2008 – 93 C.L.A.S. 215, 20082008 CLB 2696 and Rio Tinto Alcan Primary Metal and C.A.W.-Canada, Local 2301, (2011) 204 L.A.C. (4th) 265 (Steeves).
In the Union’s submission the Company’s policy, which would subject an employee who reports the loss of his or her driver’s licence to a medical assessment process, is an unwarranted intrusion into personal and private information for what the Union characterizes as health related issues, highway traffic matters or questions of public policy, and not workplace safety related issues. It submits that the balancing of interests approach followed by the Arbitrator in SHP 530 cannot extend to allowing the Company to subject an employee to the invasive requirements of a medical assessment merely by reason of the suspension of a driver’s licence. Stressing that prior awards have confirmed the legitimacy of drug and alcohol testing on the basis of reasonable grounds, post-accident or transfer into a safety sensitive position, the Union’s representative submits that it is beyond the legitimate interests of the Company to subject an employee to medical evaluations merely on the basis of the loss of an individual’s driving privileges. The Union stresses that such a medical examination leaves the employee open to the discovery of non-related confidential medical information which, the Union submits, extends beyond the proper business interests of the Company.
Additionally, in the Union’s submission, the policy itself cannot be applied in an even-handed way across Canada. The Union notes that, for example, in British Columbia drivers are subject to a possible 24 hour roadside suspension merely on the basis of a police officer having reasonable grounds to believe that their driving ability is affected by alcohol or drugs, in circumstances which may involve no breath sample being taken. In Saskatchewan if a police officer has reasonable grounds to believe that a driver’s BAC exceeds 0.04, that may be grounds, on a first offence, for a 24 hour roadside licence suspension. In Ontario, as noted above, a licence can be lost for three days when a roadside screening device registers a BAC of 0.05 or more, while in Quebec the law is clearly more lenient, where only a BAC at or in excess of 0.08 can lead to the loss of an individual’s driving privileges. In the Union’s submission, on the whole, the Company’s policy becomes unworkable and inconsistent as it applies to employees in Canada’s different provinces.
The Union’s representative also questions the basis on which an employee who loses his or her driving privileges while on vacation, perhaps for no longer than three days, should be under an obligation to report the loss of their driving privileges to their supervisor, as would appear to be the requirement of the Company’s policy. The Union’s representative submits that there can be no legitimate workplace safety issue in that circumstance, and that the policy cannot be sustained as reasonable in that case. The Union’s representative notes that in British Columbia novice drivers may lose their driving privileges for 12 hours for registering any level of alcohol in their body, while they lose their driving privileges in Ontario for up to 30 days in the same circumstance. He argues that the Company’s policy becomes uneven and inconsistent from place to place, and particularly arbitrary and unreasonable to the extent that it may ultimately require employees to undergo medical assessments in what are substantially different circumstances, depending on local provincial highway traffic laws.
The Union also draws to the Arbitrator’s attention the fact that an individual’s driver’s licence can be suspended for reasons entirely unrelated to the consumption of alcohol. Its representative notes that in Ontario and Quebec a driver’s licence can be suspended for speeding infractions. Additionally, in Ontario, failing to stop for a police officer, failing to maintain proper vehicle insurance or the accumulation of demerit points can all result in the suspension of driving privileges, as can the failure to pay highway toll bills or, in some circumstances, being in arrears of family support payments. To the extent that those situations would be captured by the language of the Company’s policy, the Union questions the legitimacy of that policy. It submits that the Company’s policy is not reasonable, and cannot justify employees being made subject to mandatory medical assessment, under pain of discipline, for the mere loss of their driving privileges. With respect to the importance of personal privacy, dignity and bodily integrity, the Union’s representative draws to the Arbitrator’s attention the recent decision of the Court of Queen’s Bench of Alberta in Suncor Energy Inc. and Communications, Energy and Paperworkers Union, Local 707 (2012 ABQB 627), a decision imposing an interim injunction on random drug and alcohol testing, which was supported by the Alberta Court of Appeal in its decision dated October 22, 2012.
On the foregoing basis the Union’s representative asks the Arbitrator to find that the Company’s policy is an improper exercise of management’s rights, infringing on personal and private medical information, that any direction by the Company that employees attend independent medical assessments under the pain of discipline is an improper exercise of management’s rights and further seeks a direction that the Company purge any medical records and test results which might have been obtained under the policy.
The Company disagrees. Its representative stresses the highly safety sensitive nature of CN’s operations. Noting the geographic scope of railway operations, often involving the transportation of dangerous goods through highly populated areas, the Company submits that its responsibilities require a high degree of vigilance with respect to identifying and/or treating employees whose personal circumstances, including the loss of their driving privileges, give cause for concern. The Company reminds the Arbitrator of the provisions of the Railway Safety Act which designate railway employees as either safety sensitive or safety critical, depending on the nature of their duties. Additionally, reference is made to the health and safety provisions of the Canada Labour Code (Part III), as well as the obligations placed upon employers to protect against bodily harm and the avoidance of reckless disregard for the lives or safety of persons, as provided in sections 217.1 and 219 of the Criminal Code. The Company notes further that the Criminal Code now expressly provides that the dangerous operation of railway equipment is itself a criminal offence, as established in section 249 of the Code.
Against that background, the Company submits that bargaining unit positions which require employees to either use a motor vehicle or to operate railway equipment during their duties involve inherently dangerous work which, the Company’s representative submits, justifies steps that are appropriate and necessary to ensure that no employee involved in those functions is impaired or intoxicated.
In support of its position the Company relies on the following passage from the award of the Arbitrator in SHP 530:
… the balancing of interests approach is the correct one in a case of this kind, and that reasonable cause drug testing is an appropriate rule and policy, particularly within the context of a safety sensitive industry such as railroading. Reasonable cause drug testing is a concept that was confirmed within the railway industry more than ten years ago by the awards in Canadian Pacific Limited and CN, referred to above, and it has not since been negated by any negotiated collective agreement provision of which I am aware. I am also satisfied that a fair extension of reasonable cause testing is that it applies quite properly in a post accident or post incident situation. As the lessons of the Hinton collision and the focus of the Foisy Commission Report made clear, in the aftermath of an accident, which in the railway industry can be of catastrophic proportions, a railway can expect to be held to a standard of intense scrutiny with respect to the due diligence it exercises in ensuring the fitness for duty of its employees. It can expect to be held to a rigorous obligation to gain the widest possible information about factors which may have influenced the unfolding of an incident. This level of obligation was found to be a legitimate basis for reasonable cause drug testing by the Human Rights Boards of Inquiry in Entrop.
One further theoretical concept needs to be addressed before turning to the specifics of CN’s drug and alcohol policy on this matter. As a number of the arbitral awards reflect, it is generally accepted that in analyzing the reasonableness of a drug and alcohol testing policy for the purposes of KVP standards, there may be a burden upon the employer to first demonstrate the need for such a policy, including an examination of whether alternative means for dealing with substance abuse in the workplace have been exhausted. While I do not disagree with those principles, I believe a note of caution should be registered, particularly with respect to that requirement. It seems to the Arbitrator that there are certain industries which by their very nature are so highly safety sensitive as to justify a high degree of caution on the part of an employer without first requiring an extensive history of documented problems of substance abuse in the workplace. Few would suggest that the operator of a nuclear generating plant must await a near meltdown, or that an airline must produce documentation of a sufficient number of inebriated pilots at the controls of wide-body aircraft, before taking firm and forceful steps to ensure a substance-free workplace, by a range of means that may include recourse to reasonable grounds drug and alcohol testing. The more highly risk sensitive an enterprise is, the more an employer can, in my view, justify a proactive, rather than a reactive, approach designed to prevent a problem before it manifests itself. While more stringent thresholds may fairly be applied in non-safety sensitive work settings, as for example among clerical or bank employees, boards of arbitration should be cautious before requiring documented near disasters as a pre-condition to a vigilant and balanced policy of drug and alcohol detection in an enterprise whose normal operations pose substantial risks for the safety of employees and the public.
The Company stresses that it is only employees who are themselves required to operate motor vehicles or railway equipment in the performance of their duties who are subject to the impaired driving provisions of the Company’s policy. In the Company’s submission persons responsible for the operation of vehicles and railway equipment are, by definition, involved in safety sensitive positions, a fact which it submits is established under the provisions of the Railway Safety Act.
The Company’s representative further stresses the specific focus of the policy. He notes that the loss of a driver’s licence for reasons unrelated to impaired driving does not trigger the requirement to report that event and thereafter be subject to medical examination. For example, the Company stresses that the cummulation of demerit points or speeding offences which result in the suspension of an individual’s licence would not trigger the impaired driving provisions of the policy. Presumably, however, an employee whose duties would normally involve operating a motor vehicle would nevertheless be compelled to refrain from doing so and to advise his or her employer accordingly.
The Company’s representative stresses that the process triggered by the loss of an employee’s driving privileges for an alcohol related offence is both focused and balanced. The first step is what the Company characterizes as a confidential preliminary assessment. A Company nurse conducts an interview of the employee, frequently by telephone, which involves a series of questions relating to drug and alcohol use. The first of the tests is described as the AUDIT Test (Alcohol Use Disorders Identification Test) developed by the World Health Organization, while the second questionnaire was fashioned by the Company’s Medical Department to identify the possibility of drug use disorders. At the confidential interview stage there is no physical medical examination nor is there any taking of samples such as breath, hair or urine.
The result of the initial assessment is then communicated by the O.H.S. nurse to a Company consulting occupational health physician. It is at that stage that a determination is made as to the existence of a possible underlying substance use disorder. In the Company’s parlance that phrase refers to either substance dependence or substance abuse, disorders which it notes are defined within the medical standards of the DSM-IV.
All of the process above described is, the Company stresses, conducted entirely in confidence within the Company’s Occupational Health Services, and without any disclosure whatsoever to an employee’s managers or supervisors. When the three to five day period for the preliminary assessment is concluded, should the occupational health physician form the opinion that an individual’s medical history and information does not indicate the likelihood of a substance abuse disorder, the matter goes no further. Conversely, should the occupational health physician form the opinion that the information provided suggests that the employee may have a substance use disorder, a further referral is then made to a physician specialized in the identification and treatment of substance use disorders. Such specialists are now designated as Addiction Medicine Physicians and are certified by the Canadian Society of Addiction Medicine.
Upon completion of the AMP’s assessment, the specialist will inform the Company’s Occupational Health Services of his or her conclusion as to whether the employee does suffer from a substance use disorder and whether the individual’s condition is stable. The information so provided remains confidential within the Company’s Occupational Health Services. The only fact which may ultimately be disclosed to line management is whether the AMP assessment has resulted in a determination that the employee is fit to work, unfit or fit to work only with certain restrictions. In the Company’s submission the process so envisioned will generally be completed within six weeks of the Company learning of the individual’s loss of driver’s privileges. During that period the Company undertakes to provide alternative duties to the employee, as available, or failing the availability of appropriate work, to arrange for the payment of disability benefits based on an assessment of the employee’s individual circumstances.
Where the process determines that an employee is in fact diagnosed with a substance use disorder the Company’s Occupational Health Services determines whether any work restrictions are appropriate with regard to the employee, as for example a prohibition on driving vehicles or operating railway equipment. Additionally, the O.H.S. will determine what treatment or rehabilitation steps are appropriate for the employee’s medical condition. These might, depending on the facts, include the execution of a relapse prevention agreement with appropriate monitoring conditions to ensure that the employee’s condition remains appropriate to his or her job requirements following a return to work. Included in the Company’s concerns is its obligation to accommodate employees who are found to suffer from an addictive condition.
The Company’s representative notes to the Arbitrator’s attention that there are some 50 employees annually referred to an AMP, although not all result from impaired driving convictions. It appears that in the year 2011 some 11 employees were in fact referred to the AMP assessment process under the impaired driving provisions of the Company’s policy. Six of those 11 employees were diagnosed as suffering substance use disorders by AMPs and were reinstated subject to appropriate conditions. The remaining five employees were found not to suffer any substance use disorders and were therefore subject to no further follow ups. The Company submits that it considers the data for 2011 to be relatively typical for what has been experienced in prior years.
As a matter of procedure, the Company questions the bona fides of the Union now pursuing this grievance. It stresses that at the time of the argument of SHP 530 the Union did contest aspects of the impaired driving provisions of the policy, provisions which have not changed since 1997. It questions on what basis the Union can now revive that grievance without effectively abusing the grievance and arbitration process. The Company’s representative characterizes the Union’s grievance in the instant matter as being in violation of the principles of finality and clarity in the settling of claims as recognized by the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, (2011) S.C.C. 52. Therefore, as its first position, the Company urges the Arbitrator to dismiss this grievance on the basis that it constitutes a procedural abuse.
Alternatively, on the merits of the issue, the Company submits that the impaired driving provisions of its policy are a valid exercise of its management’s rights. Its representative stresses that there are a number of means by which the Company can identify employees with substance problems. He notes that self-disclosure is one of those, albeit it is of limited value given the propensity of persons suffering from substance use disorders to deny their condition. Nor, he submits, are peer observations, self-reporting and post-incident testing necessarily sufficient to deal with the risks raised by the possibility of impairment in a dangerous workplace setting. In the Company’s submission a successful comprehensive approach must be broader, and must recognize that conduct which is not work related might nevertheless be highly relevant to a determination as to whether an individual does suffer from a substance use disorder.
In the Company’s submission the conviction of an individual for an impaired driving offence is manifestly the kind of non-workplace related incident which should sound an alarm bell. The Company cites studies which indicate that DUI offences, while not conclusive of substance use disorders in all cases, are nevertheless a significant indicator of such disorders (see, Shaffer, Nelson & al., The Epidemiology of Psychiatric Disorders Among Repeat DUI Offenders Accepting a Treatment-Sentencing Option, Journal of Consulting and Clinical Psychology, 2007, Vol. 75, No. 5, 795-804; Beirness, D.J., & Davis, C.G. (2008), Driving After Drinking in Canada: Analysis drawn from the 2004 Canadian Addiction Survey, March 2008, Ottawa, ON, Canadian Centre on Substance Abuse).
In support of its policy the Company also relies on the testimony of Dr. Ray Baker, a highly recognized specialist in Addiction Medicine, who practices in the field and also serves as a Clinical Assistant Professor in the Faculty of Medicine of the University of British Columbia. During his testimony Dr. Baker noted that there has been a substantial decline in impaired driving since the 1980s. He attributes that to the evolution of societal attitudes towards alcohol and driving, stressing that it is more exceptional today for individuals to drive impaired than was historically the case. That, he submits, is itself an indicator that an individual who is today found to be impaired while driving may well suffer from a substance use disorder. According to his testimony, the chances of an individual charged with a single DUI offence having a substance use disorder are in the range of 40 percent. For an individual who has repeat DUI offences, Dr. Baker characterizes the likelihood of a substance use disorder to be at the higher rate of 80 percent. In his submission, an impaired driving conviction is itself a major flag in respect of the possibility of a substance use disorder, a condition which can translate into the risk of danger within a safety sensitive workplace.
Dr. Baker stresses that given the overall reduction of impaired driving in recent decades, the fact of an impaired driving conviction is, of itself, a significant red flag, to the extent that an individual’s willingness to operate a motor vehicle while impaired is manifested publicly. In his submission when that individual works in a highly safety sensitive workplace, an employer is justified in being concerned upon learning that an employee has lost his or her driving privileges, particularly when that employee’s normal duties involve the operation of a motor vehicle or railway equipment. He maintains that the Company’s policy with respect to impaired driving, here under consideration, is itself a proactive initiative fashioned to benefit both the employee who may have a substance use disorder, and other employees who might be the unfortunate victims of an incident involving an employee with an undetected disorder.
The Company’s representative concludes by submitting that the requirement in the Company’s policy for employees to disclose the loss or suspension of their driver’s licence is reasonable, as is the process established within the impaired driving provisions of the Company’s policy with respect to assessment and possible treatment. In that regard the Company’s representative states the following:
These provisions have a dual purpose: the improvement of workplace safety by addressing circumstances in which an Employee has demonstrated an increased risk of being medically unfit to safely operate motor vehicles or railway equipment for CN due to a chronic medical condition and, concurrently, pro-actively offering the possibility of identification of and treatment for an insidious and ultimately life-threatening disorder.
I turn to consider the submissions of the parties. At the outset, I find it difficult to accept the submission of the Company that the bringing of this grievance should be barred by the fact that similar issues were available to be considered at the time of SHP 530, the arbitration which first considered the reasonableness of the Company’s entire drug and alcohol policy, including the impaired driving provisions. In the 15 years since that case was heard, there has been some considerable evolution of the law with respect to the loss of driving privileges. The roadside suspension of driving privileges for relatively short periods was virtually unknown at the time SHP 530 was argued. As noted above, there are now many provisions, differing from province to province, whereby individuals can be separated from their driving privileges for relatively short periods of time, at the discretion of a police officer and without the formality of a trial. As stressed by the Union, the differences in motor vehicle statutes from province to province do give rise to factual distinctions as between jurisdictions in relation to the circumstances whereby individuals might find themselves suspended from driving, and the length of their suspension. I do not consider it unreasonable for the Union to bring this grievance in light of those developments, incrementally grafted onto our legal system over the last 15 years. It is fair to say that today, as compared to 1997, individuals may find themselves more easily suspended from their driving privileges, albeit for short and defined periods of time. I believe that the Union is entitled to raise that change in the law as a basis to consider anew whether the Company’s impaired driving policy can still be said to be fair and proper.
However, when regard is had to the merits of that very important question, I find the position of the Company to be far more compelling than that of the Union. Firstly, it must be recognized that the loss of driving privileges is of itself a serious legal consequence. It is not visited upon private citizens lightly. Even though an individual may ultimately be found to not be guilty of an impaired driving offence, the laying of so serious a charge and the suspension of driving privileges, is an extremely serious matter. I do not consider that it is unreasonable for an employer in a highly safety sensitive industry to require that employees entrusted with driving motor vehicles on the highway, or operating railway equipment over the Company’s tracks, be required to disclose the loss of driving privileges and be subject to a confidential assessment to determine whether they do have a substance use disorder.
In coming to that conclusion I am particularly impressed by the evidence of Dr. Baker. In an age when the frequency of impaired driving charges and convictions has dropped dramatically, a charge or conviction for impaired driving can fairly be seen as a cause for substantial concern as to the mental and/or physical condition of the employee who places himself or herself in a position to be charged or convicted of such an offence. The unrefuted evidence of the expert witness is that 40 percent of those involved in a single impaired driving charge suffer some form of substance use disorder. On what basis can an employer in a highly safety sensitive industry, such as a railway, turn a blind eye to that fact, and not ask an employee responsible for operating motor vehicles or railway equipment to disclose the loss of their driving privileges? And if the chances are 4 out of 10 that an individual in that circumstance in fact suffers from a substance use disorder, on what basis can it be unreasonable for the employer to require that the individual be confidentially assessed before returning them to a highly safety sensitive function? I can see none.
It is, of course, true that there is a certain degree of unpredictability as to how and why an individual may lose his or her driving privileges, and that the elements which conduce to that outcome do in fact vary from one jurisdiction to another. That, however, is simply the nature of the law in a nation comprised of a number of separate provincial jurisdictions. Indeed, the procedures and requirements to first obtain driving privileges may vary from province to province. The fact of provincial differences should not, in my view, prevent an employer with national operations from exercising its judgment to determine that, of itself, the loss of an individual’s driving privileges is a sufficiently serious fact so as to require disclosure and to trigger the possibility of a confidential assessment to determine whether that individual, employed in a highly safety sensitive industry, may in fact suffer from a substance use disorder. I consider a policy imbued with such vigilance and caution to be highly reasonable.
The process which the Company uses is discreet and, in my view, respectful of the personal privacy interests of the employees who are subject to the policy. The decision to refer an individual for AMP assessment is not made by line managers or operations supervisors. It rests entirely within the confidential workings of the Company’s Occupational Health Services. The only role of a supervisor is to receive the first information from the employee that he or she has lost their driving privileges. Thereafter the matter is treated confidentially and in accordance with professional medical standards.
Nor is the Company’s concern merely speculative or theoretical. As reflected in the unchallenged evidence of Dr. Baker, fully 40 percent, a significant minority of persons, convicted of impaired driving in fact suffer from a substance use disorder. As he put it, a meaningful number of those who lose their driving privileges in that circumstance are in fact alcoholics who may pose a high risk for safety in the workplace. Given the highly safety sensitive nature of the Company’s enterprise, I find it reasonable for the Company to require the medical evaluation of an individual who normally operates vehicles or railway equipment whose involvement with alcohol has led to the loss of his or her driving privileges. While it may be that in the majority of cases no substance use disorder will in fact be found, the 40 percent possibility that it will be found is, I think, a telling justification for a careful follow-up on the part of the employer.
Finally, the material before me does not suggest that there is anything abusive or excessive about the Company’s approach to its policy. As noted above, in 2011, some 14 years into the application of the policy, 11 employees were identified for AMP assessment. The majority of those were in fact diagnosed with substance use disorders and apparently became involved in the implementation of conditions which would allow their safe return to the workplace. Five of the 11 employees referred for AMP assessment were found to not have any significant medical condition and were removed from any further scrutiny. How can the treatment of these 11 persons, out of a workforce of some 15,000 employees, be viewed as anything less than reasonable and responsible? While the Arbitrator respects the motives and concerns which underlie the Union’s grievance, the objective facts before me fall well short of revealing overreaching on the part of the Company or abuse of its employees and disregard for their dignity. On the contrary, I am satisfied that the Company’s policy is in all respects reasonable and that it will enhance the safety and well-being of the Union’s own members.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Ottawa, Ontario this 18th day of January, 2013.
________________________________
Michel G. Picher
Arbitrator