Harold Smith, QC with the assistance of Matthew Raske (summer student)

A recent labour arbitration decision, Unifor Local 64 and Corner Brook Pulp and Paper Limited, shows how the permissibility of drug and alcohol testing continues to evolve as legislatures codify and intensify the safety obligations of employers.

In particular, this case demonstrates how employers can rely on their statutory and Criminal Code responsibilities to ensure a safe workplace to justify demands for drug tests from of a group of employees suspected on solid grounds of impairment without objective evidence of actual impairment.

Facts

The Corner Brook Pulp and Paper Mill operates a restricted access Shipping Area, where it stores and distributes the newsprint it produces. Employees in the Shipping Area operate clamp trucks (modified forklifts) to carry paper rolls, each weighing up to 1300kg, from the warehouse to the ships that dock at the wharf.

Given the weight of the paper rolls, the high concentration of mobile equipment, and the presence of pedestrians, the Shipping Area is considered a safety sensitive workplace. Only shipping department employees and those specifically authorized are granted access to the warehouse.

Moreover, smoking is strictly prohibited. Dry newsprint and smouldering cigarettes are a recipe for disaster.

One day, the Mill’s Safety Supervisor received an anonymous tip that shipping department employees were using a hidden shelter they had constructed near the lunchroom to smoke outside the strictly-enforced designated smoking areas. The Safety Supervisor investigated immediately.

Upon arriving at the lunchroom, he noted the distinct aroma of cannabis. He followed the smell and noticed that it was emanating from a hole that had been cut into the wall of the building next to the lunchroom. The Safety Supervisor passed through the hole and discovered a secret room with plywood walls that had been installed in the exterior space between two adjacent buildings.

The room contained two benches along with a space heater and light source connected by extension cord to the lunchroom. The Safety Supervisor found two soda cans, used as ashtrays, as well as what appeared to be “roaches” (the butts of cannabis cigarettes) on the ground. He cut the cans open and discovered more roaches.

He took photos of the scene, sealed the roaches in bags, and locked them away in his office.

The Safety Supervisor then reported the results of his investigation to management, who concluded the evidence suggested that clamp truck operators had been smoking cannabis while on duty for some time and, indeed, that very morning. Such activities violate the company’s Drug and Alcohol Policy and Smoking Policy. Moreover, driving a clamp truck while impaired poses a serious and imminent safety risk.

For these reasons, the employer halted work and demanded a drug test of all employees on duty in the shipping department to that point in the day. All 21 employees provided a sample through swab without refusal. They had been warned of discipline if they did not comply.

None of the employees tested availed of the confidential exemption for medication as permitted by the company’s Drug and Alcohol Policy.

The testing took approximately four hours. Because no employee appeared obviously intoxicated to the trained tester, the employees were subsequently sent back to work to finish their shift.

The roaches collected by the Safety Supervisor were later analyzed at a certified testing facility, where it was confirmed that all were the butts of cannabis cigarettes. The swab tests were also analyzed.

The union grieved the employer’s right to demand the testing.

It is relevant to note that this was not the first cannabis-related incident at the Mill. Approximately one year prior, the employer discovered that cannabis plants were being cultivated on the roof of the Mill. The responsible party was not identified, and the police were called in to destroy the “farming” efforts.

Issue

The sole issue in this arbitration was whether the demand for drug testing was appropriate and reasonable in the circumstances.

Determining this issue involved balancing individual employees’ rights to privacy and dignity with the employer’s legitimate business and safety concerns.

Arguments

Union

The union argued the drug testing was an unreasonable invasion of the employees’ privacy and constituted random, legally impermissible testing. In the alternative, it argued that even if the testing was permissible, the employer did not discharge its burden of proving that any of the employees subjected to the testing had brought or used drugs on the premises or were intoxicated in violation of any workplace policy.

Employer

The employer argued the testing was permissible in the circumstances of this case. The justifying factors it cited included the safety sensitive nature of the workplace, the prior incident involving cannabis cultivation, the clear breach of its Drug and Alcohol Policy, and the fact that all shipping employees could have been called upon to operate clamp trucks that day.

The employer further argued that the provincial Occupational Health and Safety Act (“OHSA’) and the Criminal Code placed a positive obligation on the supervisor to act, which necessitated the testing.

Section 6 of the OHSA provides that “a worker, while at work, shall take reasonable care to protect his or her own health and safety and that of other persons at or near the workplace.” The employer coupled this section with the Criminal Code provisions dealing with negligence causing serious injury or death to argue the supervisor had both a civil and Criminal Code responsibility to ensure no such negligence occurs in the workplace. To refrain from testing in the circumstances, the employer argued, would be to expose both the supervisor and the company to significant criminal and civil liability in the event of an ensuing intoxication-related incident.

Precedent

The union cited a line of jurisprudence which contemplates the appropriate balance between employees’ privacy rights and the employer’s right to test. All the union’s cited cases pre-date the relevant regulations and requirements of the OHSA and the Criminal Code standard of impairment. As such, none of them consider the issue through the lens of statutory occupational health and safety obligations and the impact of criminal negligence in the workplace.

Irving

The seminal case cited by the union is Irving. In that case, the Supreme Court allowed a union grievance challenging a mandatory random alcohol testing policy implemented unilaterally by the employer, a paper mill.

In Irving, the Supreme Court emphasized that drug and alcohol testing is an acceptable intrusion on employees’ privacy rights in dangerous workplaces where the employer has reasonable cause to believe an employee was impaired while on duty, was involved in an accident, or was returning to work after treatment for substance abuse (para 5). Where the employer has reasonable cause, they are generally entitled to test individual employees in safety-sensitive positions without having to show that alternative measures have been exhausted (para 30).

To justify random mandatory testing of a group of employees, however, the employer’s bar to establishing reasonable cause is much higher (para 6). Mandatory testing without reasonable cause is regarded as an affront to the dignity and privacy of employees (para 33).

The Supreme Court reiterated in Irving that the reasonable cause determination requires balancing safety with privacy in dangerous workplaces. It also requires fulsome consideration of the surrounding circumstances (para 16).

The arbitrator’s decision

The arbitrator found for the employer and dismissed the grievance. In particular, the arbitrator endorsed the employer’s arguments regarding its statutory obligation under the OHSA and the Criminal Code to test in these circumstances.

Reasonable cause

The arbitrator held that the employer had reasonable cause to demand the tests. The volume of roaches discovered in the clandestine smoke room, viewed together with the prior incident regarding cannabis cultivation, indicated a substance abuse problem was taking root in the restricted Shipping Area. Moreover, the lingering aroma of cannabis indicated that someone working the current shift had been smoking.

The arbitrator distinguished this case from Irving, which concerned general random testing of all employees. This case, she observed, involved specific testing of a specific group of people – all of whom were probable suspects of drug use in the workplace.

Appropriate scope

The arbitrator also approved of the scope of the testing, noting that “an employee’s right to privacy is a core workplace value, albeit one that is not absolute” (para 135). The employer restricted testing to employees who:

1. were on shift
2. were required to be capable of operating the clamp trucks, and
3. had access to the smoke room on that day.

The potential for serious injury from an intoxicated driver was seen as temporally and spatially proximate to demand tests from all workers. The arbitrator said the following regarding the employer’s discretion to order drug tests:

“Those making the decision to test must be accorded a degree of deference and not held to a standard of perfection, and the employer needs to be given substantial latitude to investigate a safety event. What is reasonable to investigate must be judged based on the circumstances of each case and what was realistic at the time” (para 137).

With these considerations in mind, the arbitrator dismissed the union’s argument that the presence and smell of cannabis in the workplace was not a reasonable basis for suspecting impairment. Cannabis, the arbitrator writes, “does not appear at the workplace by magic” (para 70). The only way the employer could ascertain whether any of its drivers were intoxicated was to test them all (para 160).

Statutory duty

The arbitrator noted that none of the cases cited by the union were decided in the context of statutory occupational health and safety duties. In other words, the employer’s argument was novel. It was also persuasive.

Courts have always been alive to need to balance privacy with safety in dangerous workplaces (para 128). However, the arbitrator notes that the codified onus and hefty liability imposed by the OHSA and Criminal Code on employers “more clearly articulate[s] the dire consequences faced by employers and their managers who do fail to ensure the workplace is safe for all employees” (para 149). Employers and their agents are “duty-bound,” both civilly and criminally, to ensure a safe workplace (paras 151-152).

In ordering the tests, the employer was pursuing a legitimate interest. But more than that, to refrain from testing would have been to breach workplace statutory and Criminal Code obligations.

The employer’s argument, which underscored the gravity of these statutory duties and contextualized their place within the privacy-safety dichotomy, ultimately persuaded the arbitrator that the testing was reasonable in the circumstances.

Key takeaways

The inquiry of whether drug testing demands are reasonable is highly fact-driven. And the outcome will vary with the unique circumstances of each case.

Nevertheless, a number of observations can be drawn from this case that can help employers draft and administer effective drug and alcohol policies.

1. To justify drug and alcohol testing, an employer must demonstrate prima facie reasonable cause against each employee subjected to testing.
2. Employers have positive obligations under Occupational Health and Safety legislation and the Criminal Code to ensure safety in the workplace, which can contextualize whether a demand for a test is reasonable.
3. These workplace statutory and Criminal Code obligations can be persuasively cited to justify post-incident testing of a group of employees suspected of impairment.

Employers are encouraged to obtain legal advice on their drug and alcohol policies, and whenever investigating a situation involving potential impairment in the workplace. 

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour and Employment group.