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Nov 8, 2012

Quebec arbitrator weighs in on workplace drug testing

Green light for employee drug testing where reasonable and probable cause due to evidence of drug problem and reports of specific employees using
By Éric L'Italien
    
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On September 13, 2012, Quebec Arbitrator Lyse Tousignant affirmed an employer’s right to subject an employee to drug testing where it had serious, reasonable and probable grounds for doing so. Where such grounds exist, screening for the presence of drugs represents a fair balance between an employee’s right to preservation of his dignity and privacy and management’s right to safeguard the legitimate economic interests of its business and organize the work being done by its workforce.

The union, in two separate grievances, had challenged both the suspension imposed on an employee following his refusal to submit to drug screening on November 20, 2009, and the same employee’s subsequent submission to drug screening, which was administered on December 8, 2009. The union argued that screening for drugs was abusive in this case, as it impinged on the employee’s basic right of privacy. More specifically, it alleged that the employer had no valid and overriding reason for submitting the worker to such screening since there were no prior drug-related incidents in his record and since, on the evening the test was administered, there were no apparent symptoms or anything to suggest that the worker might be under the influence of any substance. Moreover, the employer’s own evidence showed that the worker had never departed from the applicable safety rules, including those relating to the plant’s lock-up procedures.

The evidence presented to the arbitrator nevertheless showed that the industrial environment in which it operated was a “potentially hazardous” one. The type of equipment used, the lock-up procedures that had to be followed and the fact that an employee could be called upon to go inside a machine to clean it, were among the illustrations given. In this regard, the employer alluded to a succession of accidents that took place in 1999-2000, including one fatality. These incidents had led the employer to develop a health and safety manual that included all the company rules and regulations. After an initial distribution to employees in 2003, a second manual was provided to them in 2006 in which the question of drugs and alcohol was addressed. The manual was redistributed a third time in 2009. In addition, all the employees attended at least one drug abuse workshop in 2007.

It also emerged from the evidence that there was a significant drug problem in the plant at the time in question. In August 2009, the employer had received an anonymous list alleging that 23 employees were or had been impaired on the job, which number represented 20 to 25 per cent of the plant’s workforce. The name of the employee in this case was on that list. Given the extent of the problem, a memorandum was read to the employees, including the employee in this case, in which the company emphasized the seriousness of the situation and its intention to use all means at its disposal to deal with the problem. Thereafter, the memorandum was attached to employees’ pay stubs. In the meantime, on September 20, the employer had a private firm conduct an investigation. The investigators made a search of the Montréal plant, which revealed that the problem was even more widespread than had previously been thought. A workshop on how to detect the symptoms of alcohol and drug use was given to management personnel on September 29, and a criminal record check of the persons on the list obtained in August 2009 was carried out.

At the end of the process it was decided to target for testing five individuals whose names were on the list, one of whom was the worker in this case, among other things because co-workers had told the plant manager that he used illicit substances on the job and that he wore dark glasses and his face was flushed.

Employer had reasonable and probably cause to test employee: Arbitrator

Following an analysis of the applicable principles and a review of the evidence brought before her, the arbitrator dismissed both grievances.

On the subject of whether the employer had reasonable and probable cause to believe that the worker had a substance abuse problem, the arbitrator found that it did, noting that the context suggested that the employer had a major problem on its hands. While the work setting – which involved massive machinery that was dangerous to operate and where health and safety considerations were an uppermost concern at all times – was indeed an important factor in this case, the arbitrator also considered the fact that the worker’s name had been on the anonymous list and that the plant manager had been told by employees that the worker used illicit substances and had himself noticed that the worker wore dark glasses and had a “cool-cat” style about him. In the arbitrator’s view, all of these considerations argued in favour of the employer’s decision to resort to screening.

Indeed, even if it lacked any evidence of substance impairment in the worker’s case, it was clear that a major drug problem existed at the plant. In addition, specific facts contributed to justify the employer’s decision to target the worker for screening. First and foremost, the arbitrator noted, the worker had initially consented to undergo screening and it was only after consulting with his union representative that he had refused to comply. Thus the employer, contrary to the union’s assertions, had not proceeded randomly and indiscriminately. On the contrary, in the arbitrator’s view, the employer had acted prudently, taking care to consider all the evidence that was available to it. Rather than simply requiring all employees on the list to undergo a drug test on the spot, it had consulted its legal advisors with a view to proceeding in a logical way, which ultimately resulted in targeting certain specific individuals. In the circumstances, this way of proceeding met the reasonable and probable cause threshold justifying the screening.

As for the grievance disputing the employee’s consent to undergo screening on December 8, the arbitrator found that the employee’s consent had been given voluntarily. Although the union president had led the employee to believe that the employer would dismiss him if he refused to submit to testing a second time, the arbitrator found that it had not been shown that the employer had done anything to suggest that it had any such intention.

Conclusion

An employer operating in an environment that entails significant risks to worker health and safety is justified in asking an employee to submit to drug and alcohol testing where it has reasonable cause to believe that the employee may be under the influence of intoxicating substances on the work premises. In certain circumstances, drug testing, when it forms part of a set of actions taken by the employer, is a reasonable measure enabling the employer to maintain a productive and safe work environment while ensuring minimal impairment of Charter rights.

The author wishes to thank Nicolas Deslandres, articling student, for his help in preparing this legal update.

For more information see:

Syndicat des Métallos, section locale 7625 et Groupe Permacon, une compagnie OLDCASTLE, Anjou (Québec) (Sept. 13, 2012), grievances nos. G-55-09 and D-69-09, AZ-50894201 (T.A.), Lyse Tousignant, arbitrator.

Éric L'Italien practises employment and labour law with Norton Rose in Montreal. He can be reached at (514) 847-4289 or eric.litalien@nortonrose.com .

    
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