Post-incident drug testing

Question: What type of event would be considered serious enough to warrant post-incident drug testing? How specific does a drug policy have to be in describing it?

Answer: There are, in effect, two types of workplace drug testing that are widely recognized — random testing and post-incident testing. Random drug testing has strict legal rules around situations where it may apply, and it is not generally accepted in Canadian jurisprudence. Cause testing, or “post-incident” testing, requires some more analysis.

In the recent Alberta case of Canadian Energy Workers’ Association v. ATCO Electric Ltd, two workers were installing transmission towers amidst narrow roads and hilly terrain when one accidentally crashed his truck into the other’s moving equipment, partly because he failed to get help checking his blind spot. The employees’ supervisor ruled that the two should have post-incident drug and alcohol testing. The employer’s policy held that post-incident testing should be conducted if the incident involved time lost (no matter how much time), was reportable under the Alberta Occupational Health and Safety Act for serious injury, and caused property (including vehicle) damage greater than $10,000. The policy also permitted discretionary testing for an incident “which local management determines had clear potential to result in one or a combination of the above or could have resulted in lost time.”

In this case, the employer maintained that the incident had the potential to cause lost time and warranted testing. The employees filed grievances, but those grievances were dismissed. Previous arbitrators have held that there are key fact-based considerations in determining the need for post-incident testing, including “the threshold level the incident requires to justify testing; the degree of inquiry necessary before the decision to test is made; and the necessary link between the incident and the employee’s situation to justify testing.” This is meant to rule out the need for testing in every trivial incident, but because the incident here happened partly because of carelessness, the testing was held to be valid. The court agreed and ruled “It is clear that the balancing of an employer’s interest in safety with employees’ privacy rights in their bodily integrity is a nuanced and very fact specific exercise.”

For more information see:

• Canadian Energy Workers’ Association v. ATCO Electric Ltd, 2018 CarswellAlta 642 (Alta. Q.B.).