Written by: Scott Garoupa
Drug & Alcohol Policies, Cannabis Testing, and Employee Privacy Rights
Substance Use Policies, and alcohol/drug testing as part of those policies, are increasingly common in workplaces. These policies must balance an employee’s right to privacy with an employer’s obligation to maintain a safe working environment. With the legalization of cannabis, workplaces have had to grapple with the application of these policies in the absence of clear scientific evidence linking testing standards to impairment.
In a recent success, Moore Edgar Lyster LLP’s Tamara Ramusovic and Daniel McBain helped to clarify the law in this area and confirm that employee privacy rights must be given due weight when an employer applies its substance use policy.
In Vancouver Shipyards Co. Ltd. -and- Marine Shipbuilders, Local 506, the primary issue was whether the Employer was justified in requiring as a condition of return to work that the Grievor agree to attend an Independent Medical Examination (IME) with an employer-selected physician, and submit to random drug testing over the course of 12 months, in addition to the imposition of a 10-day suspension.
Following an incident at the workplace, the Employer required the Grievor submit to drug and alcohol testing, pursuant to its 2018 Substance Use Policy (the “Policy”), in forms of a breathalyzer, urine sample, and oral fluid sample. In a prior decision, the arbitrator determined that the Employer was justified in requiring testing, as impairment was a reasonable line of inquiry in the circumstances.
The Grievor complied with testing and, during a post-incident interview, candidly admitted that he had smoke marijuana at 8 pm the night prior to his shift. Under the Policy, only the urine test was positive.
Pursuant to standard practice, the Employer suspended the Grievor for 10 days without pay, required him to undergo an IME with a substance use specialist of its choosing, and required him to agree to random substance testing, at his cost, for a period of 12 months, in the form of a “monitoring agreement”. The IME provided had determined that the Grievor did not have a substance use disorder, and did not recommend a monitoring arrangement.
The Union asserted that, given that urine testing only establishes use sometime in prior weeks or months, the testing amounted to lifestyle monitoring with no workplace nexus, and that the Employer had failed to respect the grievor’s privacy rights. Ultimately, the arbitrator agreed with the Union’s submissions and held the none of the Employer’s actions following the drug and alcohol testing were justified. The arbitrator voided the discipline and ordered that the Grievor be made whole, including a significant award of $15,000 in damages for the violation of the Grievor’s privacy rights.
The arbitrator made four crucial rulings in this decision:
(1) Arbitrator Peltz found that the Employer had failed to bring its unilateral practice following every positive urine test of requiring an IME, monitoring, and imposing a 10-day suspension, to the Grievor’s attention. On this basis, and applying the principles from KVP, the arbitrator held that the Employer’s practice could not be enforced against him.
He commended that the Employer had informed the Union of this practice, but held that such an action did not displace its KVP obligation “to notify employees of a rule that could result in interruption or even loss of their employment” (para. 206). Arbitrator Peltz confirmed that employers are obligated to provide “fulsome” notice of their substance use policies, and attendant practices, before those policies and practices can be enforced.
(2) Arbitrator Peltz held that the application of the Policy to the Grievor was unreasonable, as the language of the Policy required an exercise of discretion tailored to the individual circumstances at hand. Here, the Employer ordered an IME automatically, without consideration of the Grievor’s circumstances.
In making this ruling, the arbitrator endorsed the arbitral principle that an employee’s right to privacy must be balanced against a need for an IME that is both “properly established and reasonably necessary” (para. 212). He confirmed that the use of an IME, by an employer’s unilaterally selected physician, is the most intrusive option available to employers, and emphasized that, in the case before him, the Grievor was not given any opportunity to suggest less intrusive options. This was particularly egregious given that the Grievor was well-known to be an excellent worker, had no history of impairment-related issues, and was cooperative throughout the Employer’s investigation.
Similarly, there must be an exercise of discretion when imposing monitoring. The sole circumstance considered by the Employer was the positive test, which did not establish workplace impairment. In finding that the requirement for monitoring was unreasonable, the arbitrator rejected the rationale in Re Suncor Energy Inc. and CEP, Local 707 (Woods Grievance), [2008] A.G.A.A. No. 11 (Abells) that monitoring was justified to “manage the risk of impairment” following a positive test and declined to follow the decision.
(3) This decision also clarified the law regarding the use of urine testing in the context of so-called “residual impairment” from cannabis, with Arbitrator Peltz finding that the Employer’s expert evidence “d[id] not provide a reliable basis for assuming that employees who have used cannabis (as indicated by a positive urine test) are likely working under a residual impairment.”
Given that the Grievor had candidly admitted to smoking marijuana the night before the incident, prior use was not an issue and urine testing could only confirm what the Grievor had admitted to. “Without proof or some indicia of impairment,” Arbitrator Peltz emphasized, “it was a long leap from this to conducting a sweeping, invasive examination of the grievor’s personal life” (para. 218).
(4) Finally, Arbitrator Peltz awarded significant damages as a result of the Employer’s unjustified violation of the Grievor’s policy rights, with $7,500 in damages stemming from the Employer’s IME referral and an additional $7,500 stemming from the imposition of random drug testing. In combination, this may be the largest award of privacy damages related to drug and alcohol matters in the unionized workplace to date.
Regarding the IME, the arbitrator characterized the impact on the Grievor’s privacy rights as “significant”, and emphasized that the Grievor was “forced to disclose many personal matters to a health professional he did not choose” (para. 242). Arbitrator Peltz found that the Employer’s good faith, albeit erroneous, actions and its careful restriction in the distribution of the Grievor’s personal information within the company were mitigating factors.
Regarding the random drug testing, Arbitrator Peltz concluded that the “burden and the affront to [the Grievor’s] personal dignity was significant” (para. 285), and underscored that the Grievor had been “subjected to a protracted series of tests involving removal of bodily fluids as well as interference with his personal life and activities of daily living” (para. 281). Such a violation demanded that the damages awarded be more than nominal.
The Union’s success in this decision confirms that the privacy rights of employees are not to be unreasonably trammelled in the pursuit of workplace safety. Employees have the right to be apprised of disciplinary rules in advance of their application, and their rights to privacy and bodily integrity must be reasonably balanced against an employer’s right to maintain a safe workplace. Further, this decision clarifies that the science linking positive urine tests to residual impairment in the context of cannabis use is inconclusive, and that such a test does not justify an automatic IME or course of random drug testing in every instance.
This blog contains general legal information and does not constitute legal advice. This area of the law is constantly evolving. Readers with questions about their particular situation should contact a lawyer. To speak to the lawyers at Moore Edgar Lyster LLP about Substance Use Policies and/or Drug and Alcohol Testing, you can reach us here.