Alberta employer too hasty in telling supervisors about employee’s failed drug test
Employer should have notified employee about drug test results and suspension before telling supervisors: Adjudicator
11/19/2010|employmentlawtoday.com|Last Updated: 11/19/2010
An adjudicator with Alberta’s Office of the Information and Privacy Commissioner found an Alberta employer did not comply with the notification requirements of provincial privacy legislation when it informed certain employees and others that an employee who was suspended for a positive drug test wouldn’t be around.
An Alberta employee of Lafarge Canada, a supplier of construction materials based in Montreal with locations across the country, complained that Lafarge had used and disclosed his personal information in contravention of Alberta's Personal Information Protection Act (PIPA). The individual alleged that the company had told employees and other individuals that he had been dismissed for failing a random drug and alcohol test taken on Nov. 4, 2008.
After the employee failed the drug test, Lafarge’s health and safety officer met with the employee and his foreman to discuss it. The officer also informed the supervisor and general manager the employee was suspended and unavailable for work. Later, the supervisor told contractors that the employee wouldn’t be at work for a while.
Adjudicator Lisa McAmmond determined that Lafarge did use and disclose some personal employee information — his suspension for the failed drug test — to the foreman, supervisor and general manager. McAmmond also determined that Lafarge contravened PIPA in the process of sharing that information with employees and other individuals. Though the disclosure of the information was made solely for the purpose of managing the employment relationship and the use and disclosures that occurred were reasonable, Lafarge had not provided the employee with reasonable notification of the use and disclosures and therefore did not have the authority to disclose his personal employee information.
McAmmond noted that in circumstances where an employee fails a drug test, there could be a very short time for reasonable notification and supervisors would need to be informed quickly if the employee is to be removed from employment duties. However, in such circumstances, the supervisors should still be informed after the employee is notified. In this case, the employee was not informed first and therefore unable to provide proper consent to the disclosure of his personal employee information.
Lafarge was ordered to ensure its employees are aware of their obligations under PIPA to provide reasonable notification before using or disclosing personal employee information.
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