'Most employers aren't trying to breach someone's privacy, they're trying to get to the bottom of something that happened'
A British Columbia company was justified in requiring a worker to submit to a post-incident drug and alcohol test, even though it was a near-miss with no negative outcome, an arbitrator has ruled.
Although there was no collision, damage, or injury, an incident where it could have been a lot worse will help justify requiring an employee to submit to testing, says Melanie Samuels, partner and co-chair of the Employment and Labour Group at Singleton Reynolds in Vancouver.
“When it's a near-miss, there has to be major possibility of damage to life or property, so there is a bit of a sliding scale,” she says. “The issue was that there were no damages and it wasn't as bad as it could have been – but anything that gives rise to what could have been a bad outcome is where the employer will be granted some leniency in terms of testing.”
Automated trucks
Teck Highland Valley Copper operates an open-pit copper mine near Logan Lake, B.C., that uses both conventional and autonomous operations. The latter are carried out in an area designated as the autonomous operating zone (AOZ).
The AOZ is a controlled-access area where both autonomous mining trucks (AMTs) – large, self-driving trucks that carry mined material – and human operated equipment. The area is considered safety-sensitive, with the human-operated equipment using GPS and virtual lanes and routes. The AMTs are equipped with sensors and are programmed to stop if their avoidance boundary intersects with another piece of equipment’s projected path.
Equipment operators were trained to avoid and minimize interactions with AMTs, as an interaction could result in a serious, and possibly fatal, incident. They were also required to be situationally aware and to do visual checks of their surroundings, while use a panel that displayed the location of equipment and AMT lanes.
The worker was employed as a dozer/loader/grader operator. He joined Teck in 2010 and started working in the AOZ in November 2019.
On Jan. 21, 2020, the worker was operating the only grader in the AOZ. The weather was cold and there was snow on the road.
The worker was asked to check an obstacle that had stopped one of the AMTs. He cleared the obstacle to allow the AMT to continue hauling and he turned the grader into the fuel bay to kick off material that had accumulated on the grader blade.
Collision averted
Once the worker cleared the blade, he started a U-turn to move out of the fuel bay, but he saw an AMT coming and stopped. The AMT stopped a second later after its system projected the grader to move into its lane. The equipment were about 25 feet apart and there was no collision, but the AMT registered it as a Level 4 emergency stop – the highest level of proximity event.
The AOZ was shut down while Teck conducted a preliminary investigation. The worker noted that his display panel indicated green lanes because he stopped the grader before it entered the AMT’s lane.
Teck considered this a close call, as it involved two pieces of equipment applying a hard brake and stopping relatively close together. Management investigated and determined that the incident could have been avoided if the worker hadn’t turned the grader towards the AMT’s lane.
The worker said that he was surprised to find the AMT in front of him when he turned the grader and there had been a lot of traffic due to a blast shutting things down earlier. He also said that he didn’t listen to proximity alarms because of ear protection and the noise of the cab heater, and he used mirrors instead of performing shoulder checks because turning in his seat could pull the grader controls.
Management was concerned about the worker’s lack of situational awareness and the “potential for heavy mobile equipment interaction.” They applied a “reasonable person standard” and concluded that most operators would not have had the same outcome.
Post-incident test
Management determined that this was a near-miss for a potentially serious incident and instructed the worker to undergo post-incident drug and alcohol testing. Teck’s drug and alcohol policy required post-incident testing after a “near hit.” The worker was required to provide a urine sample before the end of his shift, which made him feel embarrassed and humiliated. He felt that he had done nothing wrong and had stopped when he was supposed to.
Teck’s approach to the investigation and the process leading up to the decision to test the worker was well-planned and it did a good job in establishing that testing was necessary, says Samuels.
“They were very careful — it wasn’t just a knee-jerk reaction with automatic testing,” she says. “I think they were very thoughtful in terms of assessing whether there were grounds to believe that there was potential intoxication, given the fact pattern.”
The investigation was focused on the cause of the incident, which because the equipment involved had automatic systems, was human failure – the worker failing to be on the lookout – and this raised the possibility of impairment as a factor, adds Samuels.
“Because they determined that it was a human error, and also the [worker] downplayed the significance – there was no damage because it was narrowly averted,” she says. “But because one of the machines was automated, it could have had pretty significant repercussions – they took that into consideration that it was not a minor incident.”
The test result came back negative.
The union filed a grievance, arguing that there was no significant event or reasonable line of inquiry to support making the worker take a test. Test decisions should not be based on a “worst-case scenario” just because it was a dangerous workplace, and the circumstances didn’t warrant violating the worker’s privacy, said the union.
Balance between privacy and safety
The arbitrator noted that substance testing was invasive, so the need for it had to strike a proportional balance between the employee’s privacy interests and the employer’s interest in workplace safety.
In the case of a close call with no damage or injury, the incident would have to be sufficiently severe to override the worker’s privacy rights and not be trivial, said the arbitrator. For this incident and given the heavy equipment involved, the arbitrator found that it was a significant “near hit.”
The arbitrator added that the equipment stopped relatively close to each other and both had to perform emergency stops. Given the snowy conditions, an emergency aggressive stop could have had unpredictable results.
The arbitrator also found that Teck’s investigation carefully assessed the scene, considered the worker’s experience and training and that he hadn’t been warned that the AMT was coming his way. The worker was interviewed and the company obtained all the details before making the decision – which was time-sensitive, the arbitrator said.
Given that the worker’s operation of the grader was clearly linked to the incident, the way he operated it in turning it around in the fuel bay was considered unusual, and the seriousness of the close call, Teck’s decision to test the worker and explore the possibility of impairment was reasonable, said the arbitrator in dismissing the grievance.
Samuels says there are three key elements that should be part of an effective drug and alcohol policy that would help with post-incident testing: Careful wording that covers as many incidents as possible that would warrant testing is important – “It doesn’t have to be exhaustive, but define examples of when testing would be appropriate” – along with consistent application and using it only when absolutely necessary so it can be justified if challenged, she says.
Testing for a safe workplace
Samuels notes that most drug and alcohol policies can only allow testing following an incident, and safety should be the only reason to do it.
“I always look at it like you should be able to protect your employees – that's your job as an employer,” she says. “Most employers aren't trying to breach someone's privacy, they're trying to get to the bottom of something that happened, and want to see if in any way intoxication was the potential cause of it, so that it doesn't happen again.”
“I think as long as the employer is not overreacting, is carefully assessing whether there's both equipment and individual safety, then they're doing the right thing in terms of encouraging testing.”
See Teck Highland Valley Copper and USW, Local 7619 (Ross), Re, 2022 CarswellBC 2546.
