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Little wiggle room for post-incident drug and alcohol testing

Employers who are able to perform testing in certain circumstances still face obstacles if it isn’t done properly

By Jeffrey R. Smith

There has been quite a battle waged within Canada’s employment law landscape over the ability of employers to test employees for drug and alcohol use. Both sides have good points in their favour and it’s been quite the debate, as evidenced by back-and-forth decisions by various courts and arbitrators in different jurisdictions across the country.

Employers want to protect their business and ensure productivity of employees while at work, as well as ensure the workplace is safe. This is why some decisions have come in favour of workplace drug and alcohol testing, but only for safety-sensitive positions when it comes to random testing. For other positions, testing is not OK, as it can be viewed as an unacceptable invasion of privacy.

The anti-testing contingent emphasizes this invasion of privacy and the human rights issue it raises, because testing often involves taking a sample from an employee’s body – such as urine or blood tests. In addition, there are skeptics over the reliability of tests in proving whether an employee is actually intoxicated at work. For example, it’s been proven traces of marijuana remain in a person’s system long after use and the effects have worn off – sometimes days or even weeks. So a positive test for marijuana wouldn’t really prove anything, other than that the employee used or was exposed to the drug sometime in the recent past.

While random testing has faced a difficult road, post-incident testing is becoming a little more accepted. This involves testing of an employee only in the wake of an accident at work as part of the investigation into the cause of the accident. It can potentially reveal intoxication as a contributing factor or rule it out. However, if an employer wants to use post-incident testing, it needs to have a clear policy or collective agreement clause spelling out the process and when it can be used, then follow it to the letter. Failure to do so could mean trouble, given the volatility of the drug and alcohol testing debate.

Take the case of a Canadian Pacific Railway (CPR) worker who, while on the job in a CPR truck, slid into a vehicle in front of him on an icy road. There was minor damage to the CPR truck and the other vehicle, so they exchanged information. The worker then reported the accident to his supervisor, who told him to keep working while he checked with higher-ups on what to do.

The supervisor got back to the worker and said he would need to report for post-incident substance testing. They weren’t sure of the procedure, so the worker was allowed to keep working while the supervisor investigated further. The worker was later told to drive himself to meet a member of management for testing.

After the test, the worker was held out of service pending the results. In an interview, the worker said he thought he had left enough room between himself and the car in front of him, but acknowledged that perhaps he didn’t in the icy conditions. He had also mentioned to a supervisor earlier that the tires on the truck were worn. CPR felt the worker was at fault for the accident because it was a rear-ending, so it kept him on suspension even after the test results came back negative.

In finding the worker wasn’t at fault for the accident because of the icy conditions and worn tires, an arbitrator determined CPR didn’t have grounds to order a substance test under the policy set out in the collective agreement. No one in management met with the worker following the accident, nor did anyone look at the truck. The decision to order a test was made solely on the worker’s reporting of the accident over the phone. In addition, the worker was allowed to continue to work while the proper procedure was determined, showing CPR wasn’t really concerned the worker might be intoxicated. See Canadian Pacific Railway and IBEW System Council No. 11 (Jones), Re, 2014 CarswellNat 5826 (Can. Arb.).

Testing employees for drug and alcohol use at work can be a delicate process. Even when an employee has a policy in place, there can be trouble if that policy isn’t followed properly, particularly when it comes to post-incident testing. There obviously is also a time-limit when it comes to post-incident testing, which can raise questions as to the effectiveness of the test – adding fuel to the fire in the battle over workplace drug and alcohol testing.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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  • The law on testing
    Thursday, September 28, 2017 3:29:00 PM by Jeffrey R. Smith
    I don't believe any changes have been made to employment standards. Much of the law on testing comes from case law, where different forms of testing have been put under scrutiny - necessity vs. employee privacy. Methods of testing for marijuana are constantly improving. Some methods (such as urinalysis) don't hold up to proving impairment, but others are becoming useful. Impairment doesn't have to be the sole cause of an accident, the testing just has to show with probable cause that an employee was impaired at the time of the accident. Or, in the case of safety-sensitive positions, while the employee was working where drug testing has been approved.