A Vancouver employer recently learned that testing an employee for drug impairment on top of alcohol impairment without a reasonable cause is not allowed.
On March 13, 2017, a unionized employee “C.L.” working in a safety-sensitive position at Vancouver Drydock Co. reported for work as a labourer smelling of alcohol, but did not display any other obvious signs of impairment. In turn, the employer asked the employee to submit to both alcohol and drug testing. The employee was notified that if he did not take both tests, he would be fired.
According to the workplace drug and alcohol policy, the employer could require an employee to submit to drug and/or alcohol testing if the employer “reasonably believed” that the employee’s “work performance may be affected by the use of alcohol or drugs.” The policy contained several examples of “unusual behaviour” which could justify requiring an employee to be tested including smelling of alcohol, slurred speech, changes in personality, and/or mood swings.
The test revealed positive results for cocaine and MDMA (methylenedioxymethamphetamine, commonly known as ecstasy). However, the results showed that the employee’s alcohol levels were below the employer’s threshold of impairment. Consequently, C.L. was fired.
However, C.L.’s union filed a grievance following this decision, maintaining that the employer did not have reasonable cause to test the employee for drugs. The arbitrator David McPhillips overturned C.L.’s dismissal, who concluded that the policy required the employer to demonstrate that it had “reasonable cause” for requiring an employee to undergo any drug or alcohol testing. The arbitrator’s decision stated that the employer lacked reasonable cause for the drug testing, since the employer’s decision to subject C.L. to both drug and alcohol testing was based solely on the smell of alcohol coming from C.L. and there was no other reason to suspect drug use. Rather, the employer’s sole reason for requesting that C.L. undergo testing was the smell of alcohol. The arbitrator, therefore, excluded the results of the drug test from the arbitration.
In his interview with Canadian HR Reporter, Drew Demerse, partner at Roper Greyell in Vancouver, said that the employer’s error was by basing the drug testing request solely on the smell of alcohol. “The arbitrator’s conclusion in that case turned entirely on a very narrow set of facts in an agreed statement of facts; the parties agreed that the only reason that the employer requested a test was because there was a smell of alcohol on the employee,” Demerse said.
According to Demerse, establishing a “thorough regime of observation and note-taking” is the optimal way to address a potential impairment in the workplace. “The message I give to employers and to their managers and supervisors is that they’re not going to be experts in determining whether someone is impaired by drugs or whether someone’s impaired by alcohol, so the best thing they can do is to be observant, to speak with their employees, to ask some questions and see if the employee’s presentation gives rise to a suspicion consistent with impairment,” he said.
The decision taken by the arbitrator cautions Canadian employers that reasonable cause for alcohol testing does not always establish reasonable cause for drug testing (or vice versa). It is not yet clear whether the arbitrator’s decision will be applied in other similar cases and by other arbitrators in Canada.
To learn more about the procedures for reasonable suspicion training you can take DATAC’s Supervisor Awareness Training, which goes over the importance of record keeping and appropriate procedure to ensure legal defensibility.