Safety trumps privacy in Air Canada hair strand test arbitrator decision

'It would have been derelict of the company to ignore the information it had received,' arbitrator agrees with Air Canada's use of 'rare' hair strand test

Safety trumps privacy in Air Canada hair strand test arbitrator decision

A federal arbitrator has ruled in favor of Air Canada in a legal dispute involving the testing of a flight attendant's hair strand for potential marijuana use. The case highlights how every decision in employee drug testing must be carefully considered depending on particular conditions of each situation.

The employee (referred to as CB in the arbitrator’s decision) had called in sick in March of 2024, and Occupational Health Services determined they were fit to return to duty on April 17, 2024; however, before CB could return to his job as a flight attendant, Air Canada informed him he was being held out of service and he was directed to attend the Occupational Health Services Clinic for reasonable cause drug testing.

At the clinic, after some “unproductive exchanges” between union and Air Canada representatives about whether a hair strand test complied with the company’s policies, CB consented to provide a hair strand for lab testing.

Reports of marijuana use and hijacking joke led to reasonable cause for hair strand test

“Reasonable cause testing is where something happens, or in this case you get information where it may then trigger an inherent right to test. That's where there's a reasonable cause to believe the employee is impaired by drugs,” explains Lorenzo Lisi, leader of the Workplace Law Group at Aird Berlis in Toronto.

“It really does go to the employer’s obligation to ensure that there is a safe workplace, for both the general public, if they're exposed the general public, or for other employees and the employer themselves … in those cases, an arbitrator is going to look at a very high threshold for employers to meet, in order to random test for sure, but even in reasonable cause testing.”

On March 31, without CB’s knowledge, two fellow cabin crew members, also housemates in a house of 14 employees, submitted written reports about changes in CB's behavior and alleged marijuana use. The day before, they had held a house meeting in which CB had been given one month of notice to move out and was encouraged to seek help from the company EAP.

One of the reports said that CB “seemed dazed every other day and appeared to be under the influence of substances.”

The second crew member’s report claimed that CB owned a “bong” and was using it to smoke marijuana. It was also alleged that CB mentioned having other work options if he was caught by Air Canada using marijuana, and made at least two jokes about hijacking a plane “with dark humour.”

Air Canada determined that only a hair strand test could confirm whether CB was actually using marijuana, Kaplan noted, since a saliva test only determines very recent marijuana use, and urine tests the last seven days.

It’s about safety: bottom line for determining reasonable cause for hair strand test

On April 22, the Canadian Union of Public Employees (CUPE) filed a motion to stop the company from taking the hair strand test from CB and to prohibit the use of any information revealed by the test until an "Abuse of Management Rights" grievance filed by CB was determined.

The first request was moot since the test had already been conducted, but arbitrator William Kaplan noted that Air Canada still had the right to conduct the test.

“The company had an entirely legitimate safety interest to protect as the grievor had been cleared to return to work; it had reasonable cause to request testing before he returned to active employment. Put another way, the company needed to ensure the grievor was not using proscribed substances before he resumed flight duties where he would be responsible for the safety of passengers and crew,” Kaplan stated in his decision.

“Indeed, in the face of those reports from the grievor’s colleagues and housemates, it would have been derelict of the company to ignore the information it had received.”

Kaplan also affirmed that Air Canada has the right to use the test results, and that, according to the Air Canada Alcohol and Drug Policy, workers are required to “promptly inform Occupational Health of the use of any medications which may cause impairment and/or impact their ability to perform their duties safely and effectively.”

Union arguments against hair strand testing

The union (CUPE, Air Canada Component) had serious concerns with the hair strand test and whether Air Canada had violated the privacy of CB by initiating the reasonable cause hair strand test without putting it on notice, since it involved a policy change. Further, the union alleged, Air Canada had changed the protocol while there was still three outstanding grievances against it, one of which pertained directly to hair strand testing.

“Simply put, the company does not, union counsel argued, have any right to control the lives of its employees when they are not on duty or subject to duty,” Kaplan wrote. “Indeed, the union was of the view that hair strand testing was never permissible: it was an unreasonable exercise of management rights and an unacceptable invasion of privacy.”

However, Kaplan went on to outline that balancing of interests requires that, “safety comes first. The risk of returning an employee to work in circumstances like those presented here far outweighed any of the identified interests of either the union or the grievor. Any balancing of interests required that safety come first. If the test results revealed that the grievor used one or more of a number of proscribed substances, that should not be protected by granting a cease and desist order. Those results needed to be known and, if they indicated substance use, the company needed to take action.”

Context matters in determining employee drug testing – and policies

“Context matters,” Kaplan wrote, detailing that even considering privacy concerns, the information in the co-worker’s reports about CB made it clear that there was a “serious matter” that needed to be addressed before allowing him to return to work as cabin crew.

Before taking that step, Lisi says, employers need to ensure that they are considering the context of the scenario, and not to jump to conclusions. He also advises getting second opinions from other managers or supervisors who can assess the situation – highlighting the importance of having leaders who are thoroughly trained on company procedures and policies, and how to determine if there is reasonable cause for testing.

“And tailor the policy to the legitimate safety objectives of the employer. A one-size-fits-all policy may not work, different workplaces may require different policies,” says Lisi.

“It's really important to ensure that the testing is proper, that they have the protocol, if they're going to do post-incident testing or reasonable cause testing, and that their people are trained. I think that's generally where I see [employers] fall down the most.”

Latest stories