Question: When an employer has post-incident drug and alcohol testing, can an employee be disciplined for refusing to take a test the same as if the test was positive?
Answer: An employer does not have a general right to subject employees to drug and alcohol testing. However, drug and alcohol testing policies may be implemented and enforced if the policy reflects an appropriate balancing of interests, between the employer’s duty to provide a safe workplace and an employee’s privacy rights: See Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd.
In Irving Pulp & Paper, the Supreme Court noted that when a workplace is dangerous, employers are generally entitled to test employees who occupy safety-sensitive positions, if there is “reasonable cause” to believe the employee is impaired while on duty, has been directly involved in a workplace accident or significant incident, or is returning to work after treatment for substance abuse.
Where a post-incident drug or alcohol test generates a positive result, the employer must ensure its response is consistent with the applicable human rights legislation, and in particular that it has satisfied its duty to accommodate any disability (alcoholism or a substance dependence) that affected the employee’s ability to comply with policy.
In the recent decision in Stewart v. Elk Valley Coal Corporation, the Supreme Court upheld the dismissal of a mine worker who tested positive for cocaine following an accident. The employer’s policy required employees to disclose any dependence or addiction issues before a drug-related incident occurred. If such information was disclosed, the worker would be offered treatment by the employer. However, if a worker failed to disclose, was involved in an incident, and then tested positive for drugs, she would be dismissed.
The court upheld the Alberta Human Rights Tribunal’s finding that the employee was not terminated because of an addiction, but because he had breached the employer’s policy. The court rejected the employee’s argument that he did not disclose his addiction because he was in denial. It found that even if he was in denial, he still knew he should not take drugs while working, had the ability to refrain from taking them, and had the capacity to inform his employer about his drug use.
If an employer has carefully drafted policy that provides for post-incident drug and alcohol testing, an employee’s refusal to take such a test may enable the employer to view the refusal as a serious violation and provide grounds for significant discipline: See Rio Tinto Alcan Primary Metal (Kitimat/Kemano Operations).
In Elk Valley Coal Corp.-Fording River Operations, (Edson Grievance), the employee was dismissed after he refused to provide a urine sample following a workplace accident. The arbitrator found that the employer was justified in requiring the employee to submit to a drug and alcohol test, and that his refusal to take the test was a violation of the employer’s policy and amounted to culpable insubordination.
However, the arbitrator ruled that dismissal was an excessive response, and substituted a four-month suspension. The arbitrator made the reinstatement conditional on the employee’s agreement to undergo two random drug tests within the next six months, and to acknowledge that if either test was positive, the employer could deal with the violation as laid out in its policy.
If an employer wishes to treat a refusal to take a post-incident drug or alcohol test in the same manner as a positive test result, it should ensure this is clearly spelled out in its policy.
In Vancouver Drydock Co., the employer asked the employee to take a test to determine blood alcohol content, after a supervisor smelled a slight odour of alcohol on his breath.
When the employee refused, he was notified that the refusal would be treated as a positive test result and he would be suspended. The arbitrator ruled that the employer did not have reasonable grounds under its policy to require the employee to submit to an alcohol test.
The policy was found to be vague in terms of how the test would be administered and the level of blood alcohol that would result in a positive finding of impairment, and was completely silent on the consequences of refusing to take a test. The arbitrator ruled that these flaws disentitled the employer from treating a refusal as a positive test result.
Drug and alcohol testing policies must be carefully designed to ensure that they are drafted in clear and unambiguous terms, and that they comply with the law.
At a minimum, the policy should outline the circumstances where a test will be required, how the test will be administered, how a positive result will be determined, and what the consequences will be for an employee who refuses to take a test.
For more information see:
•Irving Pulp & Paper Ltd. v. CEP Local 30, 2013 CarswellNB 275 (S.C.C.).
• Stewart v. Elk Valley Coal Corp., 2017 CarswellAlta 1023 (S.C.C.).
•Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2011 CarswellBC 353 (B.C. Arb.).
•Elk Valley Coal Corp. and USWA, Local 7884 (Edson), Re, 2005 CarswellBC 3950 (B.C. Arb.).
•Vancouver Drydock Co.,  B.C.C.A.A.A. No. 77 (Munroe) (B.C. Arb.).
Colin Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or firstname.lastname@example.org.
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