Great Q. To justify post-incident testing:

The first thing you need is a safety-sensitive workplace.

Next, you need a post-incident policy that clearly defines the incidents triggering the need for testing. Such incidents must be serious including actual incidents causing or near misses with potential of causing serious injury or property damage. The policy also needs clear procedures and criteria for post-incident inquiry and asking the worker for an explanation to swiftly and fairly determine the need for testing after the incident occurs.

Last but not least, you must apply the policy fairly and consistently and not abuse it to test any and every worker after any and every incident. You don’t need reasonable suspicion of impairment (unless the policy says you do); by the same token, you shouldn’t require testing when it’s pretty clear that the worker was sober.

So, how does all this play out in your situation’ Unfortunately, I can’t tell you without knowing much more about the facts of the case. Do you have a policy’ Is the collision the kind of incident triggering right to test’ Did somebody investigate what happened and ask the workers for an explanation’ Were there any indications of impairment’ Were the workers safety-sensitive–probably the driver was but not so clear for the passengers unless they were supposed to direct the driver, spot traffic or perform some other safety function in connection with the incident.

There’s also a recent Alberta case in which an employer WAS allowed to apply a post-incident testing policy in a slow-speed parking lot collision. But the workers tested were drivers, not passengers. Still, you should look at the case because it shows how Alberta courts and arbitrators approach post-incident testing in slow-speed traffic accidents.
The case comes from the Alberta Court of Queen’s Bench and is called Canadian Energy Workers’ Association v ATCO Electric Ltd, 2018 ABQB 258. https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb258/2018abqb258.html

Hope this helps and please ring me up if you’d like to talk to me directly. Glenn 203 354-4532. glennd@bongarde.com