TransLink has been ordered to stop random cannabis testing of a SkyTrain worker who tested positive for the drug during a routine test.
The interim decision from a labour arbitrator came at the end of September, after the union filed a grievance on behalf of David Solomon.
Solomon, who has worked as a SkyTrain attendant since 2003, was made to undergo randomized, twice-monthly urine screening tests for one year after he came up positive for cannabis in a Sept. 2018 test, despite no evidence of cannabis use disorder or addiction found in an independent medical examination.
TransLink’s policies state there must be no drug or alcohol use while on shift, and that employees must be fit to work, but does not forbid pot use off the job. Recreational cannabis has been legal in Canada since Oct. 17, 2018.
Despite no evidence of addiction, TransLink’s chief medical officer, which it appointed under railway safety legislation, found that there was an “increased risk of presence of a marijuana use disorder” due to multiple factors.
Solomon, represented by Unifor Local 700, filed a grievance.
In his interim decision, arbitrator Arne Peltz said the issue raises the question of balancing public safety and employee rights.
As a SkyTrain attendant, Solomon’s main duties are customer service, fare inspection, limited mechanical or electrical fault correction and emergency responses. He may have to drive a SkyTrain in an emergency and is considered a “safety critical position” under federal railway safety legislation.
The drug screening he failed was required by federal legislation for all “safety critical” employees over the age of 40. He told the testers he did not use cannabis, but in followup tests conducted by Dr. Maire Durnin-Goodman, the director of Precision Medical Monitoring, in October, he admitted he uses three to four times a week.
Solomon told the tester there was “zero chance” of his cannabis usage affecting his work because he does not smoke before or after a shift. He said the positive test result was due to secondhand smoke exposure at a SkyTrain station, and that he had stopped smoking a week before the routine test.
“He felt that it was not the employer’s concern if he used marijuana outside of working hours,” Peltz wrote in a 52-page decision.
Durnin-Goodman said Solomon’s test results were consistent with regular pot use and not with having breathed in secondhand smoke. He did not meet the criteria for marijuana dependence or marijuana use disorder, she found, but his lies and defensiveness meant he should be monitored for a year with randomized urine tests. The chief medical officer upheld this decision.
As a result, Solomon had to check in daily to see if he would be tested and was put on administrative leave until January 2019. He has not tested positive since Jan. 1, 2019, at which time he resumed his SkyTrain duties.
In its arguments, the union said Solomon’s denial of cannabis use after the initial test was not important, as the drug is legal and TransLink policy did not forbid its use outside of work.
It said he avoids cannabis for eight to 10 hours before his shift starts, and cited research and guidelines that say six hours between pot use and work is safe.
In his decision, Peltz said he was granting the interim order banning random tests, as requested by the union, because it is “reasonably safe to uphold the grievors’ privacy and dignity rights at this point in time.”
The decision will need to go to final arbitration. A date has not yet been set.
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