Is your drug testing program legally defensible?

Sep 19, 2019

In recent years, drug and alcohol testing has emerged as one of the most contentious issues in Canadian employment and labour law. Drew Demerse, lawyer and partner at Roper Greyell LLP, a workplace law practice based in Vancouver, B.C., has discussed two recent arbitration decisions demonstrating that employers can be accountable for making reasoned decisions while proving reasonable cause for drug testing.

In an opinion piece posted on the law firm’s website, the legal expert describes two recent legal precedents as they pertain to the decision making in the arbitration process regarding alcohol/drug testing.

Reasonable cause to require an alcohol and/or drug test is established when an employee’s behaviour, speech, motor skills, appearance, or body odour are indicative of recent drug or alcohol use. If an employee is involved in an accident or a near-accident, post-incident drug and alcohol testing can be used to determine whether impairment had caused the incident.

However, according to Demerse, while the law is ‘clear’ that testing can be allowed in this type of scenario, employers can still be held accountable for making reasoned decisions. As examples, he provided two recent arbitration decisions, Toronto Transit Commission v. Amalgamated Transit Union, Local 113 and Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union, Local 1.

In the first case, a subway supervisor found an employee mechanic, Mr. Smith, sleeping in a vehicle during nightshift, and the employee failed to wake up despite the supervisor knocking on the vehicle’s window. The supervisor made the decision to ask Mr. Smith to do a drug and alcohol test, and when the employee woke up, he explained he had personal issues and had not slept in days. His explanation was not accepted by the supervisor, who required a drug and alcohol test and completed a form to explain the reasoning behind his decision, recording that Mr. Smith was drowsy and was exhibiting fatigue.

The employee refused to take the drug and alcohol test and expressed his anger. Accordingly, in keeping with the employer’s policy, the employee’s refusal was treated the same as testing positive. In court, the arbitrator maintained that the supervisor failed to consider Mr. Smith’s explanation and had no reason to believe his fatigue was caused by drugs or alcohol. Therefore, arbitration had determined there was no reasonable cause for the employer to demand a drug or alcohol test.

In the second case, Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union, Local 1 (C.L. Grievance), an employee came to work smelling of alcohol, which was reported to management by three concerned co-workers, and the employee was required by the employer to undergo drug and alcohol testing.

Although the drug test was positive for cocaine and MDMA (ecstasy), the breathalyzer test result was below the cut off level for alcohol outlined in the employer’s policy. Subsequently, the arbitrator determined that despite having reasonable grounds to demand a breathalyzer test for alcohol, there was no reasonable grounds established for drug testing because the employer did not record any reason for testing the employee for drug use, such as slurred speech or bloodshot eyes. Therefore, according to the arbitrator, the employer did not have reasonable cause to test for drugs.

According to Demerse, the arbitrator needs to balance the interests between the employer’s obligation to ensure workplace safety and employee’s right to privacy when evaluating the employer’s decision to require a drug test.

Demerse says the decision to test is more likely to get upheld by the arbitrator when:

1. The supervisor personally observed the employee’s state, and spent at least several minutes in their presence;

2. Recorded all observations on the appropriate form, or in a set of notes. Notes should include as much specific information as possible about how the individual in question is presenting ie. gait, demeanour, responses, eye movements and colour, as well as smell etc.; and

3. Provided the employee an opportunity to explain their state, and considered the explanation.

The legal expert also recommends for the employer to ask the employee when they last used drugs or alcohol, as responses can be helpful in interpreting test results. Moreover, the employee’s honesty (or lack thereof) can be a relevant factor in determining the appropriate measure in case of a positive test.

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.