Alberta Post Incident Drug Test Unreasonable Invasion of Employee Privacy
Fort Mckay Logistics LP, Fort Mcmurray Division v General Teamsters, local Union No. 362, 2022 CanLII 78227 (AB GAA) (P. Smith) is a new Alberta grievance arbitration decision where an employer’s termination of employment of an employee who failed a drug test was overturned, because the incident the employer used to justify the drug test was not significant enough to outweigh the employee’s privacy interests.
This case is important because post-incident drug testing is very common, and some guidance on when it is or is not justified is helpful.
The following are the pertinent facts found by grievance arbitrator:
- The grievor employee opened the door to her work truck on the work site and a fire extinguisher rolled out and was damaged
- Damage to this fire extinguisher was considered to be a small risk of material property damage and not a risk of injury to workers
- The employer considered this to be an incident, and required the grievor to undergo a post-incident drug test
- There was no evidence that the grievor seemed impaired at the time, but the drug test was ordered to “explore the possibility that the incident occurred as a result of impairment”
- The drug test was positive for marijuana, so the grievor failed it
- The employer terminated the grievor’s employment, purportedly for cause
- The union grieved that termination
- The employer’s drug testing policy was modelled after the Canadian Model, a widely adopted drug testing policy amongst many different employers in Canada
- The grievance was to challenge the application of the policy in this particular case, as an individual grievance, rather than to challenge the policy in a general sense
Analysis / Conclusion
Arbitrator Phyllis Smith started out her analysis by explaining that the drug testing policy was unilaterally adopted by the employer as part of its management rights and had never been challenged by the union as a policy grievance. The union was nevertheless entitled to challenge the application of the policy in an individual case such as this one, and the employer was required to “justify its actions under the policy using a balancing of interests approach” which requires the employer to consider whether the “event in question is one that justifies over-riding an employee’s privacy interests.”
Arbitrator Smith noted as follows about the test for whether it is appropriate to demand post-incident testing:
[…] Arbitrator Sims’ decision in Weyerhaeuser Co (Roberto Grievance) […] set out three elements essential to the determination to require post incident testing: the threshold level of incident needed to justify testing, the degree of inquiry necessary before the decision is made, and the necessary link between the incident and employee’s situation to justify testing.
The first element is of crucial importance because, as noted by Arbitrator Sims quoting Arbitrator Picher in his CN decision that “the degree of risk must meet a threshold sufficient to override the privacy interest” […]
Arbitrator Smith considered that threshold and found that it was not met in this case, because this incident was one of minimum risk and low impact, but those things were not taken into account by the employer prior to requiring the drug test. Arbitrator Smith also provided the following guidance about the sort of incident that would not justify testing:
[…] a finding of human error is not a sufficient basis to conduct testing. Most accidents happen because humans do not perform perfectly and there was an obvious reason for this accident which did not suggest and require the ruling out of impairment. The fire extinguisher fell out of the truck when it was being unloaded. Simple carelessness in loading the truck by someone who had never received training in loading cargo resulting in a trivial incident does not justify testing. Otherwise, every incident would result in a requirement for testing.
Arbitrator Smith found that the testing was an unjustified violation of the grievor’s privacy. The employer argued that the failed test could nevertheless not be ignored, but Arbitrator Smith disagreed:
In my view the Grievor should never have been tested based on the elements that the Employer must meet to require testing. The threshold was not met. The entire basis of the termination rested on an improperly obtained test result. Preventing employers from relying on improperly obtained test results will serve as a deterrent to employers seeking testing where it is apparent that the threshold has not been met.
In the result, the grievance was successful and the termination of employment was found to have been without just cause.
Drug testing is commonly allowed for pre-employment screening and as a post-incident investigation tool. It is not often allowed on a random basis, except in narrow circumstances of a safety sensitive position where drug use is proven to be a problem.
This case is about post-incident drug testing, which is often allowed. However, I think the key to understanding why it was not allowed here is Arbitrator Phyllis Smith’s comments that, based on what was used to justify this drug test, almost anything would justify a drug test. If that were allowed, an employer would be near to achieving the right to random drug testing, without having to satisfy the much more onerous requirements for random drug testing.
This case arises from the unionized environment, but should have persuasive weight in non-unionized environments where post-incident drug testing is also common.
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