Reasonableness of employee drug testing separate from reasonableness of alcohol testing: Arbitrator

Arbitrator found that the fact that an employee reported to work smelling of alcohol did not provide the employer with reasonable cause to test that employee for drugs
By James Jennings
|employmentlawtoday.com|Last Updated: 10/04/2018
A sign reads "Drug testing in session," on the bathroom door of an outpatient treatment center in Indiana, Pennsylvania, U.S. on August 9, 2017. REUTERS/Adrees Latif

An employee reported to work smelling of alcohol, but did not demonstrate any other signs of possible impairment. The employer responded by requiring the employee to submit to both drug and alcohol testing.

The employee, C.L., was employed as a labourer by Vancouver Drydock Co. in British Columbia. C.L. was a unionized employee.

The employer operated a safety-sensitive workplace and had a workplace drug and alcohol policy in place. Under the policy, the employer could require an employee to undergo drug and/or alcohol testing if it “reasonably believed” that the employee’s “work performance may be affected by the use of alcohol or drugs.” The policy set out several examples of “unusual behaviour” that might justify subjecting an employee for testing, including slurred speech, smelling of alcohol, changes in personality, or mood swings.

C.L. reported to work smelling of alcohol but showed no other signs of potential impairment. The employer required C.L. to submit to a urine test for drugs and a breathalyzer test for alcohol. While C.L. passed the breathalyzer test, his urine test came back positive for having consumed cocaine and MDMA within the previous 24 hours.

The employer discharged C.L. as a result of his failed drug test. C.L.’s union grieved this decision, arguing that the employer lacked reasonable cause to test C.L. for drugs.

Arbitrator David McPhillips held that the policy required the employer to demonstrate that it had “reasonable cause” for subjecting an employee to any drug or alcohol testing. The arbitrator also held that, because the employer operated a safety-sensitive work environment, it ought to be given some deference when deciding whether reasonable cause existed for requiring C.L. to undergo the drug and alcohol testing.

Despite showing deference to the employer’s decision, the arbitrator concluded that the employer lacked reasonable cause for the drug testing. The employer’s decision to subject C.L. to both drug and alcohol testing was based solely on the fact that C.L. smelled of alcohol; he did not exhibit any signs of impairment that might reasonably suggest that he had been using drugs, nor did the employer have any reason to suspect drug use. Rather, the employer’s sole reason for requesting that C.L. undergo testing was the smell of alcohol. The arbitrator therefore concluded that there had been no reasonable cause for the employer to require C.L. take a drug test, and the arbitrator excluded the results of the drug test from the arbitration.

Importantly, the arbitrator indicated that it may be reasonable for an employer to test an impaired employee for both drugs and alcohol where it is not possible to pre-determine the cause of the employee’s impairment.

"It may be impossible to know in a particular situation what is the cause, be it drugs or alcohol or even personal circumstances, so a testing for both drugs and alcohol would clearly be appropriate. The arbitral and judicial authorities establish that where, for example, there is clear evidence of impairment and it is unclear whether that may be caused by alcohol or drugs, it would be reasonable to test for both," said the arbitrator.

Check the box 

This decision cautions that reasonable cause for alcohol testing does not necessarily mean there is reasonable cause for drug testing (or vice versa). This decision suggests that requiring an employee to undergo both drug and alcohol testing for reasonable cause may be justified where there are facts giving rise to suspected impairment, but the employer is unable to determine whether the potential cause of impairment is alcohol, drugs or both, or where the employer has reason to suspect both alcohol and drug use. It remains to be seen whether and how Arbitrator McPhillips’ decision will be applied by other arbitrators in Canada.

For more information see:

Vancouver Drydock Co. and Marine Workers and Boilermakers Industrial Union, Local 1 (CL), Re, 2018 CarswellBC 1419 (B.C. Arb.).

James Jennings is an associate with Filion Wakely Thorup Angeletti LLP in Toronto, practicing management-side labour and employment law. He can be reached at (416) 408-5503 or jjennings@filion.on.ca.

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