Acting on suspicion of drug or alcohol use by employees
Question: What course of action can our company take if we suspect an employee to be intoxicated at work? Can we ask the employee to submit to drug and alcohol testing? Does it make a difference if the employee is in a safety-sensitive job?
Answer: Needless to say, it is important for employers to ensure their employees are not intoxicated on the job. Nevertheless, the fundamental privacy interests of employees also play a role when alcohol and drug testing is proposed in both unionized and non-union environments.
Where an employer suspects an employee is impaired it can take a number of actions including questioning the employee and, in certain circumstances, testing. Any testing conducted by an employer will be subject to a standard of reasonableness.
In Imperial Oil Ltd., arbitrator Picher summarized the “Canadian model” for drug and alcohol testing. In the case, the arbitrator found that an employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so. He also found that it is within the prerogative of management’s rights under a collective agreement to require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify what occurred. While the decision is in a unionized context the principles also apply in non-union environments.
Two main distinctions arise when determining the reasonableness of testing. First, the difference between alcohol and drugs in testing is important. Second, the distinction between safety-sensitive positions and non-safety sensitive positions must be recognized.
Discerning drug impairment of an employee can be a challenge. Drug testing is often less reliable in determining impairment than testing to detect alcohol impairment. Some drug tests will show positives when an employee was involved in off duty recreational drug use in the recent past, but is not currently impaired. While drug tests are becoming more reliable, suspected drug impairment should be accompanied by other indicia of use, such as smell or possession.
Alcohol testing, such as by breathalyser, is more reliable and therefore discerning impairment is less challenging. A breathalyser is also less invasive than a blood test and attracts less scrutiny by arbitrators. Arbitrators and courts have also held that the indicia of alcohol impairment are well recognized by most average people and therefore the reasonable suspicion threshold is easier to prove.
As your question has anticipated, the testing of safety-sensitive positions has a lower reasonableness threshold for an employer to show. Employers have the right and obligation to ensure their establishments are run safely and therefore have greater latitude to test employees in these positions.
In safety-sensitive positions, drug or alcohol testing may be conducted where there is a reason to suspect the employee is impaired at work. Reasonable grounds may exist, for example, where an employee exhibits behaviour that gives rise to a reasonable suspicion of impairment, smells of alcohol, or is found in the possession of drugs at work. Courts and arbitrators recognize the importance of a safe work environment and uphold testing under these circumstances.
For employees in non-safety sensitive positions, testing attracts a higher standard. The employer may be required to warn an employee or reacquaint the employee with the policies of the employer before taking any further action.
An employer may also test an employee in a safety-sensitive position after the employee has a workplace accident resulting in significant injury or damage to property or equipment, or the risk of either.
In the B.C. labour arbitration case Fording Coal Limited, the arbitrator explained that post-incident testing is held to a less stringent standard of justification than reasonable cause testing. The arbitrator held that to determine whether a demand for a post-incident test is reasonable, the employee’s condition must be a “reasonable line of inquiry” for the employer to pursue.
The employer must investigate whether there are other possible causes of the accident or near-miss. Failure to do so may render the request for the test unreasonable.
An employee has a fundamental right to privacy, even in the employment context. That right, however, is balanced against the right of the employer to provide a safe work environment. If you have a reasonable suspicion that an employee in a safety-sensitive position is intoxicated you can likely demand that a test is administered to determine impairment.
For more information see:
•Imperial Oil Ltd., (2006) 88 C.L.A.S. 273 (Can. Arb. Bd.).
•Fording Coal Limited, [2002] B.C. C.A.A.A. No. 243 (B.C. Arb. Bd.).
