On November 12th, Arbitrator Dorsey held that an employer could not implement universal “fitness for duty” testing.
The program would require drivers responsible for carrying liquid and compressed gas to be tested once every five years. The employer framed the testing as fitness for duty testing, but the program featured urinalysis and bloodwork to look for “disorders, including anemia, infection and leukemia.” In other words, the program looked (at least partly) rooted in the promotion of wellness, though requiring employees to participate in a wellness program with an (invasive) medical assessment feature is aggressive by Canadian standards, if not unprecedented.
Arbitrator Dorsey appeared to appreciate this problem, and decided the matter by finding that the particular collective agreement provision upon which the employer relied did not have the “clear and express language” necessary to authorize universal testing. He also said that truck transportation is not so safety sensitive an endeavour “regardless of the nature of the product being transported” to justify an exception to normal preference for individualized, for cause testing.