In April 2018, the Alberta Court of Queen’s Bench released their decision in Canadian Energy Workers’ Association v ATCO Electric Ltd, a case concerning the legality of drug and alcohol testing in the workplace. The Court was asked to review an Arbitrator’s ruling that ATCO Electric was legally permitted to test two employees after a work-site incident taking place outside of Fort McMurray.
The two employees, Landon Potter and Nolan Vanderkley, were working in a remote location on a narrow road that did not allow for two-way travel. Mr. Potter was directed to move a Nodwell, a 65,000-pound vehicle that is over 25 feet long, 13 feet wide, and has limited visibility to the rear and sides. After Mr. Potter got into the Nodwell, Mr. Vanderkley moved his truck to the side of the road to let another vehicle pass, positioning the truck in the Nodwell’s blind spot. Mr. Potter then backed up the Nodwell and struck the truck. It is likely that the damage could have been much worse had Mr. Vanderkley not seen the Nodwell approaching and been able to partially move his truck out of the way before contact. After the incident, ATCO decided to administer drug and alcohol testing for both employees under their Fitness for Work policy.
This constitutes yet another case requiring the Court to balance the privacy rights of employees and the importance of maintaining safe workplaces. The Supreme Court of Canada has spoken on this matter in the leading case of CEPU, Local 30 v Irving Pulp & Paper, in which they wrote that mandatory, random, and un-announced testing, without reasonable cause, will not be permitted because it is too invasive of an employee’s right to dignity and privacy. However, they ruled that “when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.”
There is a difference between “reasonable cause” testing and “post-incident” testing. The former focuses primarily on the employee, whereas the latter focuses on determining the cause of the accident. More importantly for the purposes of this case, post-incident testing does not require the employer to point to affirmative evidence suggesting impairment. Testing is simply used to rule-out whether drugs or alcohol were a possible contributing factor.
Relying on Weyerhaeuser Co v CEPU, Local 447, the Arbitration Board considered three factors relevant to justifying post-incident testing:
(1) the threshold level of the incident required to impose testing;
(2) the degree of investigation that is needed before the decision to test is made;
(3) a necessary link between the incident and the employee’s situation that justifies testing;
The Arbitration Board ruled that the threshold level was met. Although the collision caused less than $1000 in damage, the consequences could have been far more serious had Mr. Vanderkley not seen the Nodwell and moved partially out of the way. This was characterized by the Board as a “near-miss”. The investigation was also sufficiently complete to justify a decision to impose testing.
In regard to the third factor, the Court made it clear that merely “poor judgment” is not sufficient to justify testing—something more is required. This came in the form of evidence relating to safety training in respect to the Nodwell. The Board found that both employees had received training instructing them to do a circle-check and use a spotter when operating the Nodwell, which they failed to do. Additionally, these safety requirements were emphasised by ATCO only weeks earlier following another incident involving the Nodwell. Because this rendered the employees’ mistake so obvious, the Board ruled that this provided the necessary link to justify testing—and the Court of Queen’s Bench confirmed that this decision was reasonable.
It should be noted that courts are required to show a certain level of deference to employment arbitration boards. If a board applies the law correctly and the decision falls within the range of reasonable alternatives, courts will respect the discretion of these arbitral bodies. The fact that a court may have ruled differently is irrelevant; they will only disturb the decision of an administrative body if it is deemed to be unreasonable.
Although these inquiries are quite fact-specific, this judgment is informative for determining a company’s ability to legally administer drug tests following workplace incidents. Perhaps the most important take-away from this decision is that employers must be able to raise something more than merely “poor judgment” to justify testing. However, this decision is supportive of the argument that a failure to adhere to proper procedures as mandated by an employee’s training—which gives rise to a sufficiently severe incident—may constitute justifiable grounds for subjecting the employee to drug and alcohol testing.