Employers have 'a very high threshold to meet before you can impose testing,' says lawyer
An British Columbia worker was unjustly subjected to post-incident drug and alcohol testing following a minor workplace accident and is entitled to damages for the violation of his privacy rights, an arbitrator has ruled.
It’s a caution for employers to perform a thorough and meaningful investigation into the potential causes of an incident and not to jump to conclusions, according to Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver.
“If there are witnesses, make sure you get them, because that’s going to give you the best evidence and information at your disposal,” says Samuels. “The employer here totally jumped the gun and went way beyond what they were entitled to do or should have done.”
Altrad Services is a company providing industrial services to the onshore oil and gas industry. It was contracted to provide services for the construction of the LNG Canada project, a liquified natural gas export terminal being built in Kitimat, BC.
The worker was a painter employed by Altrad on the project, starting in March 2024. He lived in accommodations adjacent to the project while working.
Health and safety requirements
The worksite had health and safety requirements that included pre-task planning and hazard identification. All employees were required to document hazards with a safe task analysis (STA) that involved several steps.
The prime contractor of the project also required Altrad to have drug and alcohol policies that met or exceeded the Canadian Model for Providing a Safe Workplace developed by the Construction Owners Association of Alberta and Energy Safety Canada. Altrad had an internal drug and alcohol policy of its own.
The Canadian Model sets out the types of drug and alcohol testing, including post-incident testing where a supervisor or manager has “reasonable grounds to believe that an employee was involved in an incident.” The Canadian Model also states that if “there is objective evidence to believe that the use of alcohol or drugs did not contribute to the cause of the incident, then he or she need not request” testing.
At the beginning of his shift on July 3, the worker was on his way to the morning tool box meeting where the supervisors discussed the days’ work. It was a hot day and he was wearing heavy coveralls and safety boots, which caused considerable discomfort.
As the worker walked along a gravel walkway, he rolled his ankle on the loose gravel and felt pain. A handful of other employees were walking behind him, including two supervisors. He didn’t complete an STA, as he believed they were completed by groups of workers once they were gathered to begin a new assignment.
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Reported injury
The worker reported his injury and was taken to the worksite’s safety trailer. Supervisors questioned the worker and he completed a statement that he had been walking on “loose gravel with potholes” in sunny and hot conditions. When asked how the injury could have been prevented, the worker said “better footing, [stepping] more carefully on uneven ground.”
Altrad’s incident report assessed the injury’s severity as on the lowest possible rating short of a near miss and cited “uneven ground” as the cause.
However, the manager who was the health, safety, security, and environment safety lead didn’t think the worker’s explanation made sense, as hundreds of workers used the walkway safely every day. He felt that if the worker had completed an STA and noted the uneven ground as a hazard, it would have provided an alternate explanation for his fall. Without the STA, the manager felt he couldn’t rule out impairment as a contributing factor.
The manager completed a post-incident form, which listed four criteria for testing – physical evidence, behavioural symptoms, physical symptoms, and other. The manager only filled out the last category, indicating that the worker failed to complete an STA that led to “unrecognized hazards and subsequent personal injury” and the investigation wasn’t able to rule out alcohol or drug use.
The acting superintendent determined there were insufficient grounds to test the worker, based on the worker’s strong character, work performance, and record. However, the manager then went to the project manager, who concluded that testing was appropriate, as the worker’s explanation for falling in good weather conditions on a well-used path was “dubious to say the least” and the fall had the “potential to be very significant.” No attempt was made to contact the two supervisors who witnessed the worker’s fall and there was no signature on the form from the worker’s immediate supervisor.
Drug and alcohol test
The worker was taken to the medical facility where his injury was assessed and he submitted to a drug and alcohol test. The doctor recommended rest with a potential return to work in 24 hours with restrictions. The test came back clean with no evidence of impairment.
The worker flew home to recover and was fully compensated for eight days of missed work.
The union filed a grievance alleging that the drug and alcohol testing was improper and unreasonable. It argued that the Canadian Model and Altrad’s own policy weren’t followed and the worker’s right to privacy was violated.
Often on industrial worksites like this, if a Canadian employer is dealing with an American contractor or vice versa, it can be difficult to balance competing interests because the US has a completely different scheme for drug and alcohol testing, but that wasn’t the situation here, says Samuels.
“You're only looking at the Canadian Model, which has a very high threshold to meet before you can impose testing,” she says. “There has to be a serious safety issue, injury, or damage to property, and there has to be a thorough assessment of that.”
‘Significant incident’ threshold
The arbitrator found that the company failed to demonstrate that the fall met the threshold of a “significant incident” required under established arbitral jurisprudence and the Canadian Model, which defines an “incident” as something that “caused or at the potential to cause damage to person, property, reputation, security or the environment.” The jurisprudence established that a significant event must have occurred “in circumstances that, objectively assessed, suggest a significant possibility, beyond mere speculation, that impairment may be a contributing factor,” said the arbitrator in calling the worker’s tumble “an unremarkable accidental twisted ankle.”
The arbitrator rejected Altrad’s justification for the test that it was unable to rule out impairment, calling it a “test unless there are reasons not to” approach.
The arbitrator also found that the investigation wasn’t thorough enough, pointing to the lack of effort to interview the supervisors who witnessed the incident and the failure to secure required approvals on the drug testing form, as the acting supervisor refused to sign off on the test because he believed there were insufficient grounds for it.
Ultimately, Altrad management overreacted to the incident while not properly investigating it, says Samuels.
“The most critical thing [missed in the investigation] is they should have contacted the eyewitnesses - that's pretty basic,” she says. “They just jumped to very overreaching conclusions and they didn't do a proper investigation before launching into testing.”
Balance of privacy rights
The arbitrator determined that Altrad failed to balance the worker’s privacy rights throughout the post-incident process and investigation, as privacy was never a consideration in the decision to test the worker and the company “ignored the very real possibility that this was an accidental twisted ankle that occurs every day in all walks of life” - particularly since the company’s own accident report listed the reason for the incident as uneven ground.
“The arbitrator determined that it wasn't a significant incident - it wasn't a near miss or any of the things that usually indicate a serious incident,” says Samuels. “There was nobody harmed, there was no equipment damaged, there was no risk to life and limb - he tripped and he hurt himself and he didn't hurt anybody else, so it fell way short of what has been considered to be the requirement to have a serious incident before you breach someone’s bodily integrity and privacy with testing.”
The decision to compel the worker to submit to post-incident drug and alcohol testing was unreasonable, said the arbitrator. Altrad was ordered to pay the worker $2,000 in damages for the violation of his privacy and to expunge all records related to the drug and alcohol test from the worker’s personnel file.
Although the damages weren’t high, it’s a reminder that there's going to be consequences for not following policies properly, particularly when it comes to drug and alcohol testing, says Samuels.
“They spent whatever they spent on an arbitration hearing and they have to pay the worker, so the costs aren’t insignificant,” she says. “The worker didn’t lose any wages to be compensated for, but there was a penalty demonstrating that arbitrators are going to take this stuff seriously.”
