ON Board: Refusing a Drug Test ≠ Failing a Drug Test

Although random drug testing is illegal and random alcohol testing is problematic, it’s generally acceptable to test workers for either substance after they’ve been involved in a workplace incident. Post-incident testing is especially justifiable when the worker to be tested occupies a safety-sensitive position, such as forklift driver, or works in a safety-sensitive industry, such as construction. If the worker tests positive, the employer would generally be within its rights to discipline him and perhaps require him to seek treatment and submit to random testing. But what if the worker involved in an incident refuses to be tested?  Can the company treat the refusal as the equivalent of a positive test? A recent labour board ruling involved exactly this situation. Although the case took place in Ontario, the principles involved apply in all parts of Canada.

THE CASE

What Happened: An experienced worker backed up his 50-tonne crane without using a signal person or conducting a field level risk assessment. The crane contacted three power lines, pushing one line into the others so that an arc occurred. No one was hurt in the incident but more than 3,000 customers lost power for almost 45 minutes. Although the worker didn’t exhibit any noticeable signs of drug or alcohol impairment, the manager investigating the incident couldn’t rule out such impairment as a cause of the incident. So as provided by the company’s policy, he asked the worker to submit to a post-incident drug and alcohol test. The worker refused on advice of his union, claiming that the test violated his rights. The company suspended him for 10 days and refused to let him return to work until he provided a negative test result and agreed to counselling and random tests. What the Board Decided: The Ontario Labour Relations Board ruled that, under these circumstances, the company had no right to treat the worker’s refusal to be tested the same as a positive test result. How the Board Justified the Decision: The Board upheld the company’s post-incident testing policy, which provided for drug and alcohol testing if there were reasonable grounds for such testing or if the company couldn’t reasonably eliminate alcohol or drugs as a contributing factor to the incident. It also concluded that the company was justified in asking this worker to submit to testing. The incident was serious and could easily have injured or killed the worker or others. In addition, the worker initially denied hitting the power lines—despite clear evidence to the contrary—and showed bad judgment in backing up his crane without a signal person. But the Board was troubled by the company’s treatment of the worker’s refusal as the equivalent of a positive test result. The company’s policy doesn’t say that it would treat refusals as positive test results but doing so had been its practice. In some circumstances, a refusal could be treated like a positive result, such as if a worker reeks of alcohol and appears to be refusing because he knows he’ll fail. The problem here, explained the Board, was that the company didn’t consider the circumstances before it essentially treated the worker as a substance user. The worker had a long service record without a single incident or infraction. He didn’t exhibit any signs of impairment after the incident and indicated that he was refusing to be tested because he and the union believed that testing violated his rights. Thus, under these circumstances, the Board concluded that the company’s treatment of the worker’s refusal as if he’d tested positive was an unwarranted exercise of management’s rights [International Union of Operating Engineers, Local 793 v. Sterling Crane, [2009] CanLII 71591 (ON L.R.B.), Dec. 14, 2009].

ANALYSIS

The company in Sterling Crane made two mistakes. First, it had a generally acceptable drug and alcohol testing policy. But that policy didn’t make it clear that the company would treat refusals to be tested the same as positive test results, although doing so was its practice. By spelling out this practice in the policy, it would have at least put workers on notice of the company’s intentions as to refusals. The company’s second mistake was that its practice of treating refusals as the equivalent of a positive test was applied in a way that was too black-and-white. The company should have considered the surrounding circumstances, such as the worker’s record, whether he exhibited signs of impairment, the nature of the incident, etc., in applying the policy and not simply equated refusals with a positive test in all cases. This mistake proved to be the company’s downfall. Bottom line: Treating a refusal the same as a positive test can be justified if the company considers the reasons the worker refused. For example, the policy might have been upheld if the worker who refused testing was clearly exhibiting signs of impairment at the time of the incident. But in this case, the worker didn’t show signs of impairment. Yet the company automatically equated refusing to be tested with drug/alcohol use without considering all of the factors involved. The Sterling Crane case is thus a good illustration of how, in general, courts, labour boards and arbitrators frown upon rigid testing policies that apply automatically regardless of the situation.