Slight scrape not significant event warranting drug and alcohol testing: BC arbitrator

Employer followed proper post-incident testing procedure, except for the incident part

Slight scrape not significant event warranting drug and alcohol testing: BC arbitrator

A British Columbia employer had a reasonable drug and alcohol policy in place but unreasonably applied it when it ordered a worker to undergo testing following a minor incident, an arbitrator has ruled.

It’s a good example of the kinds of policies and checklists that employers should have in place, but also that it’s all in the application, according to Mike Hamata, an employment and labour lawyer at Roper Greyell in Vancouver.

“This is a good opportunity for all employers to refocus on what arbitrators consider to be a significant event and how that may differ from a more common-sense operations approach to defining what a significant event is [for post-incident testing],” says Hamata.

“When determining whether something is a significant event that warrants post-incident drug and alcohol testing, employers can't rely on a worst-case scenario.”

The worker was employed since 2003 with Vancouver Shipyards Co. (VSC) at its shipyard in North Vancouver, B.C., as a steel fabricator and welder. The shipyard was a safety-sensitive environment, with the repairing, maintenance, and construction of marine vessels taking place.

VSC had a substance abuse policy (SAP) to protect against the risk of an impaired employee causing a safety risk. The policy required testing if there was reasonable cause to suspect impairment or after a “significant event.” The SAP defined a significant event as an incident or act by an employee that contributes to a fatality, injury, near-miss of an injury, or significant damage to equipment or the environment.

On May 8, 2020, the worker was assigned to weld the shell of a ship that was more than 90 feet high using an aerial working platform (AWP).

The AWP was parked in the work yard close to a large machine called the equalizer. Before operating the AWP – which was also large – the worker filled out a hazard assessment form and walked around the machine to check for obstacles or other employees who might be nearby.

After confirming that the AWP was clear, he started maneuver it out of its parking spot. Because the AWP was operated from a basket that was the furthest away from where the equalizer was parked, the worker couldn’t see the far end of the AWP.

A small scrape

As the worker moved the AWP slowly – one kilometre per hour, as per standard procedure – he thought the far end of the AWP was getting too close to the equalizer. He also thought he might have heard a “click,” but he didn’t feel any impact. He stopped the machine to check and observed that the far end of the AWP had contacted the equalizer.

There were no witnesses, so the worker shut down the AWP and reported the incident to his supervisor.

Management checked out the scene and saw that the only sign of contact was a slight scraping of paint between the two machines. The worker showed no signs of impairment, but they decided that the incident was a significant event under the SAP.

Read more: A near-miss incident with a large truck was serious enough to warrant post-incident testing, the Alberta Court of Queen’s Bench ruled.

They interviewed the worker and he explained how the incident happened. When asked what he would do differently next time, he said that he would use a spotter. He denied using any cannabis, alcohol, or illegal drugs, but management determined that drug and alcohol testing would assist the investigation by ruling out impairment as a probable cause.

The worker was ordered to undergo testing and the incident investigation report stated that “tighter areas while using a lift need spotters and more detailed hazard assessments.” The worker provided a swab sample, a urine sample, and a breathalyzer sample. All came back negative.

After the test, the supervisor told the worker that he could either return to work or take the rest of the day off with pay. Since it was a stressful experience, the worker went home.

When the worker returned to work, he filled out a form describing the incident and that it was caused by “no spotter.” He also wrote “using a spotter” as a way the incident could have been prevented.

Testing not justified: union

The union grieved the drug and alcohol testing, arguing that the incident was not a significant event under the SAP and possible impairment of the worker wasn’t a reasonable line of inquiry for VSC to pursue.

The arbitrator noted that there was no reasonable cause for testing under the SAP because there were no signs of impairment. As a result, only the significant event justification could be engaged.

The arbitrator also noted that the jurisprudence indicated that to justify testing, there must be “a realistic conclusion reached after a thorough investigation that injury or serious damage almost occurred.”

The arbitrator found that, since there was no significant damage or injuries, the only justification would be whether there was a near-miss of either.

The worker had walked around the machinery, he moved the AWP at an extremely slow pace, and there was no evidence that anyone normally would have been nearby or in the tight space between the machines. In addition, the worker never lost control and immediately stopped when he thought the AWP was too close, said the arbitrator.

Can’t apply worst-case scenario

Given the facts of the case, an injury or significant damage would be a speculative worst-case scenario, which isn’t enough to justify invasive testing, says Hamata.

“The rationale is that if employers were permitted to use that kind of reasoning, it would be hard to imagine a situation where any kind of accident at work wouldn't be a significant event, because you could always imagine a situation where it could have gotten worse,” he says. “There has to be some possibility or probability that it could have been worse, not just a speculative worst-case scenario.”

The arbitrator determined that there was no near-miss of an injury and minimal damage to the machines. This was not a significant event under the SAP, and therefore VSC’s decision to order drug and alcohol testing violated the worker’s privacy and bodily rights, the arbitrator said.

The arbitrator ordered records related to the testing request to be removed from the worker’s file. However, the arbitrator noted that VSC treated the worker with respect and acknowledged the stress of the situation by allowing him to go home early, so VSC was only ordered to pay $1,000 in damages.

Read more: The test for determining a drug and alcohol problem at a safety-sensitive workplace should include the entire workplace, not just the bargaining unit, an Alberta court found.

Hamata recognizes that employers with safety-sensitive workplaces could get frustrated with this sort of arbitral approach, but the bar is high to infringe on employee privacy.

“[Employers] want to ensure that their workplaces are safe and that people are free from impairment – they are legally required to do that,” says Hamata. “But arbitrators have been consistent in finding that requiring an employee to submit to a drug and alcohol test, even if it's post-incident, is still a significant intrusion into the employee's privacy and bodily integrity – those are the competing interests that arbitrators have to balance in these situations.”

Despite the fact that the employer lost the case, its policy was solid and the managers appeared to be properly concerned about safety – they just perhaps could have been trained a bit better in reasonable cause and post-incident testing, says Hamata.

“Training and checklists for these situations are really important, and they're becoming more important as the amount of scrutiny given to these decisions is increasing,” he says. “So managers need to be trained on how to recognize signs of impairment and have a consistent approach to determining whether or not someone has truly has reasonable cause to suspect impairment.”

See Vancouver Shipyards Co. and CMAW, Local 506 Marine and Shipbuilders (Serat), Re, 2022 CarswellBC 1647.

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