'This was not a disciplinary action, but an intervention'
A British Columbia company was entitled to suspend a truck driver when it learned the driver was taking medication that could cause drowsiness for which it needed more information, an arbitrator has ruled.
Given the safety-sensitive nature of the business, the employer had no choice but to suspend the worker, says James Kondopulos, a founding member and partner at Roper Greyell, an employment and labour law boutique in Vancouver.
“This was not a disciplinary action, but an intervention driven solely by concern for the safety of the [worker] and others,” he says. “In the arbitrator’s mind, suspension was a reasonable response given the concern and the vacuum of useful probative information about the drowsiness effects of the medication.”
Shift schedule for drivers
The worker was truck driver with Supreme Trucking, a general freight trucking company based in the Vancouver area. Drivers worked on a shift schedule that included day, evening, and night shifts.
Supreme had to follow WorksafeBC’s safety procedures and the National Safety Code (NCS) —a set of federal standards that establish minimum requirements for the safe operation of commercial vehicles that is adapted by provincial authorities.
The NCS and other safety standards agreed that driving while impaired on prescription or other drugs could affect the attention, judgment, motor skills, reaction time, and co-ordination. The company’s safety manual required employees to provide Supreme with any medical information about the use of prescription drugs, including their fitness to operate heavy machinery.
Read more: A B.C. company’s request for medical information determining a fitness for duty wasn’t discrimination, the province’s human rights tribunal said.
In July 2021, the worker provided a medical note saying that he had torn a rotator cuff and was waiting for surgery. Until then, he would have to take pain medication that made him sleepy. The note indicated that the worker shouldn’t drive trucks after 9 p.m., limiting him to day shifts.
The note raised concern for Supreme, as it seemed that the worker had already been taking pain medication for some time. After an inquiry from the company, the worker’s legal counsel sent a letter saying that “as per the doctor’s instructions,” the worker was not to work past 9 p.m.
Insufficient medical information
Since it had no details on the dosage, timing, or effects of the medication, Supreme suspended the worker pending further medical information indicating that he was fit to operate a truck safely.
The information that the worker provided about his medication was deficient in multiple ways, according to Kondopulos.
“They knew that this prescription medication would cause drowsiness but, as the arbitrator noted, there was no indication of when the drowsiness started, when it ended, dosage, when the medication was taken, or how frequently it was taken,” he says. “Essentially, there was no information at all about the nature and extent of the impairing effects, so what you had was a serious safety concern involving a truck driver and operator of heavy machinery and no way of allaying that concern.”
The worker said he would co-operate, but his doctor implied that it was safe for him to drive a truck before 9 p.m. Supreme requested medical information on his medication and why it prevented him from working past 9 p.m.
The union filed a grievance, claiming that the worker had been unjustly suspended and unfairly held out of service while Supreme investigated his fitness for duty.
Read more: An Alberta company wasn’t required to accommodate a worker who failed to provide information on their physical restrictions and medication effects, according to the Alberta Human Rights Tribunal.
Supreme responded by saying that it could determine whether the worker could return to work safely once he provided the requested medical information.
A couple of weeks later, the worker’s legal counsel sent the original medical note and a generic document from a pharmacy describing the medication and its side effects, which Supreme found of little use. The worker said that he would prefer to provide information through an independent medical examination (IME) rather than directly from his doctor, so the company asked the worker to schedule one with a third-party physician of his choice. When the worker tried, he was told that it must be booked by the employer.
An IME was booked with a pain management specialist on Aug. 30. The IME doctor determined that the worker had not been taking medication before or at work, so he could safely operate a truck on a consistent schedule of either day shifts or evening shifts after 9 p.m., as long as he took his medication before bed on a predictable schedule.
Supreme returned the worker to work on Sept. 2, working steady evening/night shifts.
Employee suspension made sense
The arbitrator found that Supreme had no other choice but to suspend the worker, as operating trucks is a safety-sensitive and heavily regulated occupation. When Supreme learned that the worker was taking pain medication that made him drowsy, it was reasonable to require more information — which it immediately made clear to the union and the worker. The suspension was for safety, not disciplinary reasons, said the arbitrator.
For those same reasons, it was reasonable for the company to hold the worker out of service until it received sufficient medical information indicating that he was fit to perform his job safely, said the arbitrator.
Kondopulos describes the decision as common sense and safety-driven, properly balancing the competing interests of workplace safety and personal employee privacy.
“The way the arbitrator approached it, as long as the employee does not provide the required medical information, he can reasonably be held out of work on safety grounds, and the reason for that is he represents a risk to himself, to his co-workers, to the public, and to property,” he says.
The arbitrator noted that Supreme didn’t show due diligence in booking the IME, which caused a delay. The company should have taken the reins to book the IME from the start, said the arbitrator.
However, the arbitrator also found that the delay wasn’t significant, the company engaged in regular review and discussion with its legal counsel, and there was no delay once the expert was agreed to, said the arbitrator in dismissing the grievance.
Kondopulos emphasizes three important points in this decision for employers:
- the employee’s obligation to participate in the accommodation process
- the employee’s obligation to provide sufficient information to satisfy legitimate safety concerns
- the employer’s obligation to take steps to ensure safety in the workplace.
“Obviously, personal medical information is highly sensitive and it attracts a higher degree of privacy rights than other information, but given the nature of the concerns, the nature of the job, and the nature of the industry, intrusion on that privacy is warranted and justifiable,” says Kondopulos.
“And if it means providing details about the specific medication and the nature of the impairing effects, all of that is relevant information and fair game.”
See Supreme Trucking Ltd. and West Coast Truckers Union (Gill), Re, 2022 CarswellBC 373.