Arbitrators decide what makes post-incident testing legal

In a series of recent arbitration decisions regarding legal testing for post-incident alcohol and drug testing, Arbitrators Andrew Sims and David McPhillips have reviewed and provided clarification for the legal test for post-incident alcohol and drug testing.

The series of these arbitration decisions include Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (JS Grievance), Interfor Acorn v. United Steelworkers, Local 2009 (Perez Grievance), Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (Bohun Grievance).

Specifically, in Vancouver Shipyards (JS Grievance), the Union grieved the employer’s requirement for the grievor to undergo a post-incident alcohol and drug test following an incident which took place on July 25, 2019. The grievor was instructed to go into a building to pick up scaffolding material with his forklift. However, he did not honk his horn when entering the building, which would have been “best practice”. Another employee working on the premises, DW, claimed that he was directly in the line of the fork lift, which put him in a “pinch point.” However, according to the grievor, the grievor said he had stopped the forklift and DW was not in a pinch point and never in any real danger.

In the Vancouver Shipyards (JS Grievance) decision, Arbitrator McPhillips concluded that the employer did not demonstrate that the incident was serious enough to raise it to the level of such a significant event (creation of a major risk of injury) that it justified an invasion of the grievor’s privacy.

In addition, there were errors in what was recorded on the employer’s checklist and a failure to appropriately follow-up and ask for clarification of some of the grievor’s responses in order to ascertain that the employer had a complete understanding of the grievor’s version of events.

Therefore, Arbitrator McPhillips concluded that the investigation undertaken by the employer was not sufficient to establish an alcohol and drug test as being a reasonable line of inquiry, and the grievance was upheld.

The clarification of the legal test for post-incident alcohol and drug testing is as follows:

The decision to conduct an alcohol and drug test following an incident requires an investigation considering: (a) the threshold significance of the incident required to justify testing; (b) the degree of inquiry necessary before the decision to test is made; and (c) the link between the employee in question and the incident necessary to justify the testing.

In accordance with the recent decisions regarding the legal test for post-incident alcohol and drug testing, each element of the applicable legal test must be evaluated as part of the employer’s investigation into the incident and determination of whether testing is warranted in the circumstances.

Therefore, it is essential for employers to review their investigation forms and checklists, to ensure they sufficiently address each element of the legal test.

DATAC provides a course which covers reasonable suspicion testing and best practices for implementing drug and alcohol testing after incidents, including appropriate record taking and investigation. You can check out our Supervisor Awareness Training course for more information on how to make sure your testing is legally defensible.

 

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