B.C. arbitrator sets aside random drug and alcohol testing at coal mines

Company couldn’t prove workplace problem with drugs and alcohol that justified collection of employees’ personal information
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 03/22/2018

Once more, the issue of random drug and alcohol testing has come up within an industry where safety sensitive workplaces abound. The industry this time: coal mining. While post incident and reasonable cause testing were introduced and accepted years ago in certain British Columbia coal mines, when the employer tried to introduce random testing, it didn’t go quite so smoothly. And in the end, it followed the trail established in recent decisions elsewhere.

The latest round in the conflict over random alcohol and drug testing in the workplace has gone in favour of workers and unions, as an arbitrator has ruled a British Columbia coal mining company cannot continue its testing of workers without evidence of a real problem with impairment at its facilities.

Teck Coal operates five coal mines in southeast B.C. that feature mine operations, mine maintenance, and coal plant operations. The mines operate heavy equipment such as large haul trucks, electric shovels, dozers, loaders, graders, and fuelling equipment, often in close proximity. The mines also run 24 hours a day, seven days a week in all types of conditions.

On Oct. 14, 1999, the company that ran the Fording River mine before Teck assumed control unilaterally implemented a drug and alcohol policy that prohibited the use, possession, and distribution of alcohol and any illegal drug while on duty at the mine. The policy also prohibited use off-duty if it would adversely affect work performance and implemented mandatory testing if there was reasonable cause to believe a worker’s performance was affected by drugs or alcohol. Violation of the policy could lead to “disciplinary action up to and including dismissal,” but it also offered assistance to employees with addiction or dependency issues who voluntary sought help. Testing for both drugs and alcohol was done by urinalysis post-incident or in circumstances of reasonable cause.

An arbitrator upheld the policy following a union grievance in January 2002, finding employers didn’t need a policy for reasonable cause or post-incident testing and the policy put employees on notice that tests would be demanded. In 2003, Teck’s predecessor at another of the mine sites, Elkview, implemented the same testing policy. While some were uncomfortable with the effect random testing had on employee privacy, it was seen as a part of the overall reduction of risk and improvement in workplace safety.

Over the next several years, the testing policies at both mine sites became accepted parts of the operations and were seen by both the employers and the unions to be working well. By 2012, lost time injuries and medical aid requests decreased at both operations and overall safety was viewed to be improved. In addition, workers’ compensation premiums were reduced at both sites.

New policy and random testing introduced

By 2012, Teck had taken over both the Fording River and Elkview mines along with three others in the region. The company consulted several experts in drug and alcohol testing who expressed the view that such testing was a part of “a risk management approach to workplace safety” in safety-sensitive workplaces and reduced the risk of employee impairment through deterrence. The experts also held the view that reasonable cause and post-incident testing were of limited prevention use because safety was already at risk by the time such testing is done.

From 2008 to 2012, Teck’s data showed it conducted 412 post-incident drug tests and two reasonable cause drug tests at Fording River, which had 965 employees. 10 of those tests came back as positive, resulting in eight terminations (with two reinstatements on last chance agreements) and two resignations. In the same period, seven employees asked for help with their drug and alcohol problems and all were subject to monitoring and last chance agreements. Of those seven, three were terminated after testing positive on a random test that was part of their monitoring.

Teck’s data on Elkview for the same period showed 184 post-incident drug tests with four positive tests. Three of the employees were terminated but later rehired on last chance agreements and one resigned. 11 of the 1,000 employees at the mine asked for assistance.

Following the consultations, Teck revised its alcohol and drug policies at all five of its mines. The revised policy prohibited a blood alcohol concentration of 0.02 — a cut-off used by the U.S. Department of Transportation and other agencies — while at work as it was considered a safety risk, while also prohibiting possession, use, or distribution of alcohol at any of Teck’s work sites. Positive alcohol tests following an incident faced termination and those following a reasonable cause test were to be placed on a medical leave of absence and referred to an addictions specialist. A refusal would be treated as a positive test.

Teck’s new policy also encouraged employees with dependency issues to come forward and the company would place them on a paid medical leave while they sought treatment at the company’s expense.

What caused the most reaction, however, was that the new policy also introduced random testing for all employees in order to enhance the deterrence element. The testing would be done by trained personnel in separate facilities to help with confidentiality and employees were selected by a third-party computer company. A breathalyzer was to be used for alcohol tests and urinalysis for drug tests.

Introduction of the new policy was to be staggered rather than at all of the mines at the same time so Teck could learn from each experience and make adjustments if necessary.

The unions at four of the mines including Ford River and Elkview — the fifth wasn’t unionized — grieved the new policy over privacy concerns from “the seizure and testing of employees’ bodily substances.” They argued there wasn’t evidence of a significant problem in the workplaces that warranted the invasion of employees’ “privacy, integrity, and freedom of movement” or any proof that random testing would improve workplace safety. The privacy violation contravened the collective agreements, human rights legislation, and privacy legislation, the unions said.

Collection of personal information needs justification

The arbitrator acknowledged that Teck’s drug and alcohol testing policies “generate personal information about the employee being tested, i.e., whether he has alcohol or drugs in his system and if so, at least in the case of alcohol, in what concentration.” This information was passed on to an addictions specialist if the test was positive, who would be acting on behalf of the employer. Under privacy standards — in this case B.C.’s Personal Information Protection Act — Teck would have to justify the collection, use and disclosure of the information as necessary for managing the employment relationship.

Teck admitted that its new testing policies and random testing infringed on employee privacy, so it was left for the arbitrator to determine if there was sufficient cause for such an infringement and if it was a proportionate response to that cause.

The arbitrator found that Teck’s random testing policy intruded on employees’ privacy “in a very invasive manner,” as it required employees to submit to the tests and provide bodily fluids and breath samples. It also required employees to meet with an addictions specialist and disclose personal health information in the event of a positive test.

The arbitrator also found that Teck’s mines could be considered dangerous and safety sensitive, given the nature of the work and the equipment used at the sites. However, this alone didn’t justify random testing. The arbitrator pointed to the Supreme Court of Canada’s 2011 decision in Irving Pulp and Paper Ltd., where the top court stated that unilateral implementation of random testing shouldn’t be allowed without proof of “a demonstrated workplace problem.” A look at the evidence didn’t show such a problem at Teck’s mines and was not the reason the company implemented the new policy, the arbitrator said.

“The genesis of the idea to implement random drug and alcohol testing in Teck Coal’s …coal mines was not any specific problem with substance abuse in any of those workplaces. Instead, it was an element of risk that Teck Coal foresaw could impinge on safety in its mine operations and accordingly it sought to manage that risk so as to, as much as possible, eliminate it,” said the arbitrator. “After consulting with substance abuse experts in relation to drugs and alcohol, Teck Coal decided to adopt random testing as the best way of deterring employees from engaging in this risky behaviour.”

While recognizing that Teck’s reasons for random testing to maintain a safe workplace was reasonable, the arbitrator found there was a difference between a safety risk — “a hypothetical state of affairs” — and a problem — an actual state of affairs supported by evidence that is difficult to control. Given the invasiveness of testing, a hypothetical state of affairs didn’t cut it as justification, said the arbitrator.

In addition, the arbitrator pointed to Teck’s strong safety record and efforts which made its operations already safe places to work. Though its testing policy was part of its safety plan, its other efforts made conflicts with employee privacy rights through random testing unnecessary. While Teck’s approach was “carefully designed” to deter employees from coming to work with drugs or alcohol in their systems, there was no evidence random testing would have a significant effect on the likelihood of it happening, said the arbitrator.

Teck’s data indicated there were some positive tests discovered from post-incident and reasonable cause testing, but the numbers — about three per cent between 2008 and 2013 — coupled with its random testing numbers following implementation — 1.13 per cent positives in 2013, 0.41 per cent in 2014, and 0.88 per cent in 2015 — didn't show there was a “demonstrable workplace problem.” The court also noted that urinalysis tests weren’t reliable for drugs such as marijuana, which show past use but not current impairment, and the alcohol limit didn’t reflect the differences in how much can impair different people.

“The random testing statistics do not prove that the employer’s employees are abusing alcohol or various illegal drugs,” the arbitrator said. “They can only prove that employees are using them.”

The arbitrator determined that Teck didn’t have evidence to prove there was a significant problem with drug and alcohol abuse at its mines and therefore couldn’t justify violating employee privacy rights with random testing of its employees. Teck was ordered to set aside its random alcohol and drug testing policy.

For more information see:

Teck Coal Ltd. and USW, Locals 7884, Re, 2018 CarswellBC 119 (B.C. Arb.).

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