Supervisor wrongly believed two tests should be done
A British Columbia worker who management worried was impaired by alcohol should not have been required to take a drug test in addition to an alcohol test, an arbitrator has ruled.
The worker was a painter for Vancouver Drydock Company (VDC), a company that performs marine repair work in Vancouver. VDC had a substance abuse policy that required drug and alcohol testing for reasonable cause and following an incident. Reasonable cause could be based on observations by management including “slurred speech, smelling of alcohol or drugs, changes in personality, being argumentative, or mood swings.”
On Feb. 1, 2019, the worker attended a training session scheduled at the beginning of the afternoon shift. Employees were given the option of going home at the end of the session.
VDC’s health and safety manager led the training session and twice while he was walking around the room he noticed an “odd odour” at the worker’s table that he believed to be alcohol.
At the end of the training session, the superintendent of the shift convened a meeting with the health and safety manager and the safety advisor where they interviewed the worker. The superintendent detected the odour of alcohol and observed that the worker was “shaky, flushed, tired and nervous.”
The worker said that he had had eight beers and two litres of cider the previous night and he was awake until 3 a.m. The superintendent asked the worker to blow in his face and he smelled alcohol, so he ordered drug and alcohol tests under the policy — a urine sample for the former and a breathalyzer test for the latter.
The worker and a union shop steward objected to the drug test as there was only the smell of alcohol, but the superintendent said if the worker refused the drug test it would be deemed to be a positive test. The worker agreed to the test, but under protest. By the end of the meeting, he was very agitated.
The alcohol test came back negative and the drug test was inconclusive. The union grieved the requirement for the urine sample, saying it was an invasion of privacy and there was no reasonable cause for it.
The arbitrator noted that although the worker attended training that day and wasn’t scheduled to perform his normal duties, the drug and alcohol policy still applied. The worker was employed in a safety-sensitive position and could have had his schedule changed for the afternoon. He also shouldn’t be under the influence of drugs or alcohol when taking part in safety training as it “would be antithetical to the purpose of the training,” said the arbitrator.
The arbitrator also noted that drug and alcohol testing involves a balance between an employee’s right to privacy and the legitimate business and safety concerns of the employer. As a result, there must be reasonable cause — some basis on which alcohol or drug testing can be justified.
The arbitrator found that VDC should have considered one of three options: the breathalyzer test for alcohol, the urine sample for drugs, or both.
The superintendent erroneously believed the policy required both tests automatically, but he hadn’t been properly trained on it. There was no sign of actual impairment and the only concern was the smell of alcohol — the worker’s appearance could have been from being hungover and sleep-deprived rather than impaired, and his agitation was the result of his opposition to being tested.
However, management didn’t ask questions to determine possible explanations.
The arbitrator determined that impairment wasn’t proven and there was no assessment as to whether both tests were necessary. As a result, the drug test requiring a urine sample should not have been conducted.
Reference: Vancouver Drydock and Marine Workers and Boilermakers Industrial Union, Local 1. Mark Brown — arbitrator. Chris Leenheer, Carly Stanhope for employer. Richard Edgar, Heather Hoiness for union. June 8, 2020. 2020 CarswellBC 1912