“A Man’s Home is His Castle” – Privacy Interests and Drug Testing

July 19, 2024

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

–William Pitt the Elder

In an award released April 26, 2024, an Alberta board of arbitration held that, much like the King of England, an employer was forbidden from “crossing the threshold” of an employee’s home to take him to be drug tested.

The grievor was struck by a power pole on the jobsite, because he was too close to the pole as it swung, and broke his ankle badly. He was promptly taken to the hospital and, after being told he needed to return for surgery the next day, was discharged for the night. The grievor’s supervisor told him that he would need to get tested for drugs and alcohol and that he would not be allowed to eat or drink anything before the test. A nurse asked the grievor if he wanted a picture taken of his X-rays and the supervisor asked him if he wanted him to take the picture, because the grievor’s phone was out of reach. The grievor agreed and the supervisor took pictures.

The employer’s alcohol and drug testing policy provided that employees could be required to take a test after an accident or a “near miss”, and that an employee’s refusal to test could result in discipline, including termination. The policy also stated that such testing should take place urgently and required employees to avoid ingesting anything that might interfere with the testing although it allowed employees to drink moderate amounts of water to avoid dehydration.

As the grievor was being taken to the hospital and receiving treatment, the employer’s Regional Manager met with representatives from Human Resources and Occupational Health and Safety. Together, they determined that there was “reasonable cause” to test the grievor given that a serious personal injury had taken place and the grievor’s “acts or omissions” contributed to the accident.

When the grievor was discharged from the hospital, his wife wanted to take him home. However, while gathered together in the parking lot, the supervisor told her that the grievor had to first be taken for testing. The employer had contracted with a third party to provide testing services and employees needed to go to the third party’s office to get tested. However, the grievor had difficulty moving given his injury, the hospital did not have crutches large enough for him, and the backseat of the supervisor’s car was very small. Although the grievor tried to get into the car, he accidentally nudged his ankle in the process and left the car in extreme pain. The grievor, his wife, and a union representative present became concerned that taking him to get tested at that moment might aggravate the injury. Further, the grievor, who was also hungry, dehydrated, and tired, would be unable to eat or drink after midnight because of the surgery. After tense discussions, all parties agreed to try to go to the testing centre in the grievor’s truck, which might better accommodate him. As they began to lift the grievor into the truck, the grievor complained that he was “in agony”, was still worried about aggravating the injury, and yelled “I f*cking quit!” Management left at that point and the grievor and his wife left for home.

After the grievor got home at around 9:00 p.m., another supervisor arrived at his door, much to his surprise. The supervisor showed him the company’s testing policy and emphasized the potential disciplinary consequences of not getting tested. The grievor told the supervisor that he was not refusing the test but needed medical transportation to the testing site and would refuse any testing option that would risk his safety. The grievor, his family and the supervisor tried and failed to find mutually acceptable solutions. Eventually, management concluded that they would not test him. The supervisor emphasized the importance of complying with the policy one final time and left. The grievor eventually had surgery and returned to work.

The Chair of the Board of Arbitration found:

• The employer had a valid reason to demand the test, even though it made the decision to test the grievor earlier than the policy said it would, because the employer would have arrived at the same decision in any case and the safety concerns raised by the circumstances of the accident justified the request.
• The grievor had implicitly consented to the supervisor being in the hospital’s examination room with him.
• The grievor had given the supervisor express consent to photograph his ankle and X-rays.
• The employer did not breach its safety obligations or fail to exercise its management rights reasonably during the parking lot episode, even though the Chair had “a number of concerns” about the employer’s conduct.

However, he also concluded that the employer had breached its safety obligations, exercised its management rights unreasonably, and failed to respect the grievor’s privacy rights when the point the supervisor showed up to the grievor’s home. The Chair weighed the employer’s safety obligations against the grievor’s privacy rights and concluded that the employer ought to have known that arriving at the grievor’s home without invitation–when the grievor was in great pain, exhausted, and preparing for emergency surgery–in order to demand that he undergo testing had breached those rights. In so doing, the Chair referred to testing as “in itself very privacy intrusive”. The Chair also had found the supervisor lied about his reason for visiting and so had not secured informed consent to enter the grievor’s home. He also found the Regional Manager who decided to send the supervisor to the home had done so because of “inaccurate and incomplete information” about the grievor’s health and motivations. The Chair awarded the grievor $7,500 in general damages for the breach but rejected the union’s claim for aggravated damages because he found the employer acted in good faith.

The Union’s nominee to the Board concurred in part with the award but would have found that the employer’s actions at the hospital and in the parking lot breached the collective agreement and that the employer was not justified in requesting the grievor test in the first place.

The employer’s nominee, Craig W. Neuman K.C., dissented in part. He agreed with the Chair’s findings up to the point of the home visit but would have concluded that the supervisor did not enter under false pretences and felt that the grievor’s family’s testimony was rehearsed. As such, he would have completely dismissed the grievance.

Key Takeaways

• Even drug testing policies that are appropriate in the abstract can be applied in an inappropriate manner.
• Employees may be entitled to refuse testing after an accident if they reasonably believe that the only methods of testing being offered are unsafe in the circumstances.
• Supervisors should be extremely cautious about accompanying employees to, and visiting them, at the hospital. They should be aware of the power imbalances inherent in the relationship and the sensitivity of the medical information involved. While such attendance at the hospital, as was the case here, might be justified, it is worth noting the Chair’s cautionary comment that it might be “best practice” for a supervisor to leave the hospital room unless the employee asks them to stay.
• Employers should be equally cautious about attending uninvited at the homes of employees, due to the substantial privacy interests that employees have in their homes. Employers must be very sure that a “legitimate, overriding business interest” [Re Bell Canada and Communication Workers of Canada, 1984 CanLII 5253 (CA LA) (Picher) at p. 408] is at stake and requires a home visit to address, considering all the relevant circumstances.

The outcome of this case illustrates the significance of the privacy interests of employees vis a vis their employer not only with respect to their bodily integrity but also with respect to the sanctity of their homes.

ATCO Electric Ltd. v Canadian Energy Workers Association, 2024 CanLII 37038 (AB GAA)

Authored by Ziv Barancik (Summer Student), with input from Craig Flood 

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