Shipyard's drug testing not justified by cannabis use: arbitrator

A worker at Vancouver Shipyards in North Vancouver has been awarded $15,000 in damages after an arbitrator found his rights had been violated when he was subjected to a year of random drug monitoring after testing positive for smoking cannabis.

The arbitrator also ordered that a 10-day suspension imposed after the positive drug test be set aside and all documents relating to the random drug testing be destroyed.

The case dates back over three years, to May 30, 2019, when the worker was acting as a spotter while another employee drove a modular transporter at the shipyard. While under his watch, the transporter collided with some scaffold stairs at the end of the dock, adjacent to a barge.

Nobody was injured and there was only minor damage.

But in accordance with Seaspan’s policy, the company demanded the worker undergo drug and alcohol testing after the accident. The urine test turned up positive for cannabis.

The worker told his supervisor he had smoked marijuana at 8 p.m. the night before his shift.

The shipyard policy doesn’t ban use of marijuana during off hours and provides no cut-off time for use of either alcohol or cannabis before a shift, according to the arbitrator's decision.

But because of the positive test, which was a breach of company policy, the worker was suspended for 10 days without pay, was required to undergo a medical evaluation and agree to random drug testing for a year.

The medical report concluded the worker was a regular marijuana user but also offered no opinion on whether he was impaired on the day of the incident.

The worker’s union later filed a complaint about the discipline handed out by the shipyard, which went to an arbitrator.

At issue in the case was what the drug test proved and whether that was enough to require year-long random drug testing.

The shipyard argued as there is no accepted chemical test for marijuana impairment, the best approach is to test for exposure to cannabis to reduce the risk of employee impairment.

The union said the test only proved use of cannabis sometime in the previous weeks or months and amounted to “lifestyle monitoring.”

Arne Peltz, the arbitrator in the case, noted two experts in the case disagreed on many issues, including how long residual cognitive impairment could last after using marijuana.

In awarding damages to the worker, the arbitrator ruled the employee should have been warned any positive drug test could result in year-long random testing.

“It is common ground in this case that a positive urine test result does not establish impairment, only use of cannabis,” the arbitrator wrote.

That is not enough to support a requirement for a year of random monitoring, the arbitrator ruled.

The arbitrator ruled the worker should also receive compensation for the lost wages due to the suspension and for expenses associated with the random drug monitoring.

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Editor's note: This story has been amended since first posting to reflect that the decision was made by an arbitrator, rather than the Labour Relations Board, following a grievance filed by the Marine and Shipbuilders Union.