When workers get involved in a safety incident in the workplace, it may raise suspicions of drug or alcohol impairment. After all, working while drunk or under the influence of drugs poses significant dangers to others in the workplace and even the public, especially when the worker drives a truck, operates heavy machinery or performs some other function that’s safety-sensitive. Companies have a legal duty to determine the cause of all incidents and take steps to prevent similar incidents from happening again. So an employer might ask workers to take drug or alcohol tests after they get involved in an incident. But employers must also respect workers’ privacy rights. Does the simple fact that the worker was involved in an incident make drug or alcohol testing reasonable? In other words, when is it reasonable to require a post-incident drug test to find out whether intoxication was the cause of or played a role in the incident? Here are two cases in which arbitrators came to different conclusions on this question.
POST-INCIDENT TESTING WAS REASONABLE
FACTS
A worker was driving a one-ton pickup truck as he air tested and inspected freight cars at a railroad running yard. The area in which he was working (the classification bowl) was a safety-sensitive area where over 2,000 freight cars were “humped” over a hill and down tracks every day. The worker tried to make a U-turn at the bottom of the bowl next to the hump track. As he was trying to reverse, a boxcar came down the hump track and hit the front of the truck, causing serious damage. The worker never heard or saw the boxcar coming. Despite the fact that the worker exhibited no signs of intoxication of any sort, the company asked him to take a breathalyser test for alcohol and a urine test for drugs. He took and passed the breathalyser test, but refused to give a urine sample. As a result, he was fired. The union filed a grievance on his behalf.
RULING
The Ontario labour arbitrator ruled that requesting a post-incident drug test was reasonable.
EXPLANATION
The company drug testing policy allowed for “post-accident testing” after “any significant accident or incident” where an experienced supervisor determines that the cause may involve or is likely to involve a rule violation and/or employee judgment. The arbitrator noted that the senior mechanical manager who requested the drug test was concerned about several aspects of the incident: The incident was out of character for the worker. He was trying to make a turn in a tight area next to the hump track when he knew that freight cars were being humped. There was enough room to back up the truck without coming near the track. In addition, cars coming down the hump track typically make a loud, screeching sound that should have alerted the worker to the hazard. Plus, the worker gave no satisfactory explanation for the incident. Given these circumstances and the safety-sensitive nature of the company’s operations as a railway, the arbitrator concluded that it was reasonable for the manager to request a post-incident drug test.
Canadian National Railway Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (Heywood Grievance), [2007] CanLII 43492 (ON L.A.), Oct. 16, 2007
POST-INCIDENT TESTING WAS UNREASONABLE
FACTS
Two workers at an oriented strand board mill were required to take drug tests after workplace incidents. In one incident, a worker was unloading a tanker car when she slipped, releasing a valve that sprayed her face and upper body with a concentrated resin. In the other incident, a worker opened an overhead door to allow a driver to back a truck into the shipping area. The driver backed in but was crooked. As he started driving forward to straighten out, the worker pushed the button to close the overhead door. The upper part of the truck hit the door and was damaged. Both workers passed the drug tests. But the union filed grievances on their behalf, arguing that the company’s post-incident drug testing policy was too broad.
RULING
The Alberta arbitrator ruled that the post-incident drug tests were unreasonable.
EXPLANATION
The arbitrator noted that after a significant incident, an employer must account publicly, often to a regulatory agency, for the cause of the incident. But the simple fact that an incident occurred doesn’t by itself justify post-incident drug testing. There needs to be “other significant information about the event and the employee’s connection to or role in the event” to warrant drug testing, reasoned the arbitrator. Thus, the employer needs to investigate the incident before a drug test is required. The managers didn’t conduct full investigations of either incident. And even though they concluded that there was no reasonable suspicion of impairment of either worker, they still demanded drug tests. Thus, the arbitrator ruled that neither demand was reasonable.
Weyerhaeuser Company Ltd. v. Communications, Energy and Paperworkers Union, Local 447, [2006] A.G.A.A. No. 48 (QL), Aug. 10, 2006
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