Alcohol testing given to police officer breached privacy: Arbitrator

‘Intrusive’ measure focused on maintaining sobriety

Alcohol testing given to police officer breached privacy: Arbitrator

Alcohol testing of an Edmonton police officer was too intrusive and didn’t properly balance his privacy rights with the risk of impairment at work, an arbitrator has ruled.

The worker was a police officer in Edmonton. He used his personal vehicle to travel around for the job, usually with a partner, and he carried a gun.

In the fall of 2019, the worker’s supervisor smelled alcohol on his breath. The worker confided that he had stressful family and financial issues — he was divorced with full custody of two teenagers and part-time custody of an 11-year-old — that had been causing insomnia. He had been trying to use alcohol to help with it.

The supervisor directed the worker to the employee assistance program, which referred him for an assessment. A rehabilitation facility recommended outpatient treatment and “unannounced substance testing at the minimum rate of 10 tests over the next 12 months of employment, and a minimum rate of eight tests in the following 12 months.” A counsellor also recommended random testing and complete abstention from alcohol.

The Edmonton Police Service (EPS) developed a return-to-work agreement in December 2019 that included unannounced urine testing for 24 months. The worker felt he was being punished and that he could have a drink while off duty, but he understood he had to maintain complete abstinence for the period of the agreement.

In February 2020, the worker was told that he would be tested with Soberlink — a hand-held breathalyzer device that uses facial recognition and GPS location that it transmits to a system in the U.S. — three times a day, along with urine testing after the weekend and a blood test after holidays. The worker was concerned about his privacy but he signed the agreement because he had been told that if he didn’t he could be disciplined.

In April, the EPS added an evening test. The union filed a grievance and the EPS adjusted the return-to-work plan so it eliminated the urine and blood tests and restricted testing to work hours. However, the union maintained the testing was “unlawful and unreasonable” and different from the recommendations of the rehabilitation facility and counsellor.

The EPS countered that the worker’s job was “highly safety-sensitive given that his full operational status allows and requires him to carry a gun, drive a vehicle, and intervene in emergency situations which may involve dealings with violent individuals.”

The arbitrator agreed that there was little room for error in the worker’s occupation, noting that “policing requires unimpaired cognitive functioning, and even a split second of impairment can be disastrous.” However, the arbitrator noted that there had to be a reasonable balance between the employer’s need for safety and the employee’s privacy rights. In this case, “the nature and intensity of the testing protocol represented a significant infringement of the [worker’s] privacy rights in at least two respects — the intrusiveness of the testing and the use of the information.”

The evidence indicated that Soberlink stored and released the personal information of the worker to a location the EPS did not properly identify or try to limit. In addition, it had been established that tests involving bodily fluids could only be carried out in “exceptional circumstances” where there was evidence of a widespread problem or threat impairment in the workplace, said the arbitrator.

The arbitrator found that the EPS didn’t assess the workplace risk and was focused on guaranteeing the worker’s sobriety rather than avoiding impairment at work — which didn’t “engage in the balancing exercise necessary to support the mandatory testing imposed in the return-to-work agreement.” As a result, the EPS and the union were directed to negotiate a new agreement keeping in mind the need for monitoring for at least two years.

The EPS was also ordered to pay the worker $7,500 in damages for the breach of his privacy rights.

Reference: EPA and Edmonton Police Services. Phyllis Smith — arbitrator. Dana Christianson for employer. Dan Scott for employee. Aug. 25, 2020. 2020 CarswellAlta 1526

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