B.C. drug testing case pits transit safety against right to smoke pot after hours

Metro Vancouver's transit authority has been ordered to stop random drug screening of a SkyTrain attendant who tested positive for cannabis during a routine medical examination.

An arbitrator issued the interim ruling pending a final decision on a battle between the Canadian Union of Public Employees and TransLink.

The case pits commuter safety against the privacy of employees when it comes to off-work enjoyment of a drug that's legal for recreational consumption.

David Solomon was forced to undergo twice-monthly urine tests last year and take counselling despite medical assessments that determined he didn't have marijuana use disorder. 

TransLink​​​​​​'s employee policy doesn't forbid employees from using marijuana away from work.

But the company argued that a "conservative approach" was needed when it came to public safety.

"This case raises sensitive and complex issues related to the tension between employee privacy and public safety," arbitrator Arne Peltz wrote in a 52-page decision.

Testing and legalization

The legalization of recreational marijuana in 2018 left many Canadian employers and employees wondering about their rights and responsibilities in terms of workplace policies.

Airlines such as Air Canada and WestJet prohibited cannabis consumption on and off duty for employees in "safety-critical" positions such as pilots and flight attendants.

And the RCMP and several other police forced across the country have adopted policies barring officers from using marijuana within 28 days of working.

As a general rule, employers cannot force employees to submit to mandatory drug tests.

In 2013, the Supreme Court of Canada said that "the fact a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally."

The court found that even in "inherently dangerous" workplaces, testing can only be justified for particular employees in certain circumstances: "where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse."

The court also said random drug or alcohol tests could be imposed in a dangerous workplace as a "proportionate response" in cases when the employer can establish a general problem with substance abuse.

'They drive a train when needed'

Solomon has worked as a SkyTrain attendant since 2003.

According to the arbitrator's decision, while attendants mostly handle customer service, fare inspection and dealing with limited electrical or mechanical issues, they are also trained to take manual control of the vehicles in an emergency.

"In other words, they drive a train when needed," Peltz wrote.

As a result, the job is considered a "safety-critical" position — which means SkyTrain attendants over the age of 40 have to undergo a health assessment every three years.

During an assessment in September 2018, Solomon provided a urine sample that indicated the presence of cannabis metabolites. He had also answered no to the question of marijuana use. 

TransLink chief medical officer Dr. Chris Stewart-Patterson decided Solomon should be removed from his duties pending confirmation of the result.

He was given a second examination by another physician, Dr. Marie Durnin-Goodman.

According to the arbitrator's report, Solomon told her he uses marijuana three to four times a week.

"[He] admitted to Durnin that he lied on the questionnaire but said there was 'zero chance' of any impact on his life or his job," Peltz wrote.

"He felt that it was not the employer's concern if he used marijuana outside of working hours."

'Misunderstood or misstated the science'

Durnin found that Solomon didn't meet the diagnostic criteria for marijuana dependence but "was not fit to return to work until he was shown to be negative for marijuana" through a year's worth of randomized drug testing.

She recommended that he abstain entirely from marijuana due to his "safety-critical" position.

"She wrote that at this time, there is no known safe level of consumption, no clear information on how long impairment may last and no reliable method of detecting when the individual last consumed marijuana," Peltz wrote.

"She also recommended [Solomon] take an educational course to provide motivation around quitting marijuana and the dangers of continued use in the context of safety-critical work."

Based on Durnin's report and recommendations, Stewart-Patterson recommended the year of randomized testing.

The union filed a grievance last November alleging that "monitoring was improper when the employee was found not to have a substance abuse disorder."

The union claimed the tests were "grossly excessive and unnecessarily invasive," citing a report from University of B.C. medical professor Dr. Evan Wood saying Durnin has "either misunderstood or misstated the science on cannabis use and impairment."

He also claimed Durnin was in a financial conflict of interest because she recommended monitoring "while she has a stake in the same industry through her own monitoring company."

Wood, who is also director of the B.C. Centre on Substance Use, stated that TransLink's actions "could ultimately worsen workplace and public safety by creating unnecessary anxiety for [Solomon]."

'No reason for him to be there'

Peltz wrote in his ruling that the decision to randomly test Solomon was "highly intrusive, controlling his daily routine with call-in obligations and demanding he give bodily fluids twice per month."

"[He] was ordered to take counselling despite no finding of a substance use disorder," Petlz wrote.

"His counsellor apparently told him there was no reason for him to be there."

Peltz noted that Solomon had completed nearly a year's worth of testing by the time the interim order was issued, meaning the safety plan would have been "substantially completed" pending a final ruling on the case.

"It would be reasonably safe to uphold [his] privacy and dignity rights at this point in time," the arbitrator wrote.

Both TransLink and the union declined to comment on the case.

A final date for the arbitration decision is not known.