'Process is important, particularly when you're talking about privacy rights': lawyer
An Ontario employer breached a worker’s privacy by ordering him to undergo post-incident drug and alcohol testing – even though it was a significant event that could justify testing, an arbitrator has ruled.
Canadian Nuclear Laboratories (CNL) manages nuclear operations across Canada. The worker was a radiation surveyor trainee at Chalk River, Ont., where CNL was decommissioning a nuclear reactor. He joined CNL in August 2021.
The worker’s duties included performing a daily survey that detects and measures nuclear contamination in areas where nuclear waste was stored in holes bored into the ground and encased in concrete. The holes were arranged in rectangular groups called tile arrays with hazard signs intermittently located on the boundaries.
On March 8, 2022, the worker was assigned to do the daily survey in a waste management area where he had been working since mid-December 2021. He had not yet completed the oral exam to be a full radiation surveyor, but he had been signed off for the daily survey. He had performed the survey three times before.
The survey was normally done with the surveyor driving around in a truck on intersecting roads, using radiological equipment sticking out of the window of the vehicle. However, a heavy snowfall the previous night had covered the roads and they had not been ploughed.
Road not visible
The worker couldn’t see the roads, so he used signs and markers to guide him. However, when he reached a “T” intersection with a tile array beyond it, there was no sign indicating the end of the road and the tile array was covered in snow. He drove into the tile array and stopped immediately. The front tires had driven over two hole caps and a rear tire was touching a cap.
The worker checked for radiation and didn’t detect any abnormal levels. He reported the incident and the radiation supervisor reviewed the tile array. The supervisor reported that there appeared to be no change in the radiological conditions or any loss of control of the truck by the worker.
The radiation protection manager and the acting director for occupational health and safety reviewed CNL’s fitness for duty policy, which included a provision stating that “following a significant event, if there are concerns regarding fitness for duty, all involved parties are required to immediately undergo alcohol or drug testing as part of the investigation process.”
They determined the incident was unusual and if a tile hole had been damaged, the consequences of a loss of containment could be significant. They decided on post-incident testing. They briefly met with the worker, who said there was a lot of snow, he couldn’t see the road, and he thought the posts indicated that the road continued beyond the “T” intersection. They told the worker that it was a safety significant event and he was required to undergo a drug and alcohol test.
The worker underwent a breathalyzer test and a urine drug test. The urine test came back positive for marijuana.
Investigation into incident
CNL placed the worker on investigative leave for three weeks and ordered an addiction assessment, which the worker felt was invasive due to questions about his personal life. After three weeks, CNL returned him to work with no discipline or loss of pay.
CNL acted appropriately by erring on the side of caution, given the nature of the work environment and what it considered a significant event, according to Lorenzo Lisi, leader of the workplace law group at Aird and Berlis in Toronto.
“There are health and safety considerations and public safety considerations, and the arbitrator accepted that this was a significant event,” says Lisi. “And they actually suspended the [worker] with pay, so there was no monetary loss for him, and it appears that they worked with both the [worker] and the union in trying to go through the [investigation] process.”
CNL’s investigation found that the worker may have been distracted because he was driving and operating the radiation meter at the same time, he was inexperienced, and the heavy snow was a factor. It changed the process for surveying the waste management area, requiring two people to reduce the risk of distracted driving. It also implemented a practice for heavy snow where employees were advised of conditions in a “pre-job interview” and, if road conditions were poor, a snowplough would be used.
A separate, non-disciplinary report determined that “lack of training, environmental conditions, distracted driving” were causes of the incident.
Employer didn’t follow proper procedure: union
The union filed a grievance, arguing that the incident was not a significant event requiring testing under the fitness for work policy and, even if it was, CNL didn’t engage in a proper inquiry or establish any concerns about the worker’s fitness for duty before testing him.
The arbitrator noted that the test for permitting drug and alcohol testing required a significant event or a near-miss that could have been a significant event, a probing inquiry by the employer, and a link between the incident and the employee’s situation. The onus is on the employer to demonstrate that the need for testing outweighs the employee’s privacy interests.
The arbitrator found that the first part of the test was met, as the incident qualified as a significant event. Although there was no damage or injuries, the tile holes contained nuclear waste and hazardous chemicals. The incident had a risk of serious harm to CNL employees and the public, said the arbitrator.
However, the arbitrator also found that the second part of the test was not met, as CNL did not follow its policy by deciding to test the worker before properly assessing the circumstances around the incident. An employer must examine alternative explanations for an event before resorting to post-incident testing, but CNL didn’t do that, the arbitrator said.
The arbitrator noted that management spoke briefly with the worker, but the decision to test him had already been made. Although it was a safety significant event, there were other factors at play – multiple reports pointed to the snow, the worker’s inexperience, and the fact he was working alone as contributing to the accident with no mention of any indications that the worker was impaired, the arbitrator said in finding that CNL failed to engage in a proper assessment of the probable causes of the incident.
‘Obvious explanations’ overlooked
“When you look at the evidence, there were relatively obvious explanations for what happened. and the fact that it was a significant incident was overestimated as it precluded a proper consideration of alternative explanations,” says Lisi. “[Management] rushed to judgment and, by doing so without a proper front-end assessment, the employer couldn't establish the link between the incident and the condition of the [worker] and didn’t take into account his privacy interests.”
In addition, the worker wasn’t given a fair opportunity to provide alternative explanations and his supervisor was also not interviewed before the decision was made, the arbitrator said.
The arbitrator determined that there were “relatively obvious explanations” for the incident, but CNL was focused on the significant incident aspect and didn’t consider the impact of testing on the worker’s privacy interests. As a result, requiring the worker to undergo drug and alcohol testing was unreasonable under the policy, the arbitrator said.
“The good news [for the employer] was the policy was still valid,” says Lisi. “Because the inquiry was invalid, the process was as well, but I think you would find most parties who look at these things dispassionately saying, ‘We're probably going to want to err on the side of caution in these circumstances.’”
The worker didn’t suffer any financial loss because he was paid during his investigative suspension and there was no evidence of any workplace rumours or widespread knowledge of the testing, so the arbitrator ordered CNL to pay the worker a nominal damage award of $1,000 for the breach of his privacy rights.
‘Process is important’
Lisi points out that CNL was correct in identifying the incident as a significant event that likely would have justified the drug and alcohol testing if it had properly followed the process outlined in the policy and the legal test.
“I don't fault the employer at all here because they were dealing with a situation where there was an accident and they moved quickly to deal with what they deemed to be a significant event,” says Lisi. “But it's always worth making sure that everybody involved with an investigation like this is on the same page, because here the person who made the determination that they would test made that assessment before talking with the [worker] himself.
“These are little things that we can remind employers to do - process is important, particularly when you’re talking about privacy rights. Health and safety is important, but arbitrators are going to acknowledge that process and privacy are important and [employers] need to be compliant.”
