“Suspicionless” Drug Testing Policy Unreasonable

May 10, 2018

On January 23, 2018, a senior British Columbia arbitrator, John Kinzie, released a significant decision concerning random drug and alcohol testing in unionized workplaces.  The decision, USW Locals 7884 and 9346 v. Teck Coal Ltd.[1] followed the ruling of the Supreme Court of Canada in Irving Pulp and Paper[2], and built upon on the arbitral jurisprudence regarding employees’ privacy rights over their personal health information.

Teck Coal Ltd. operates five coal mines in British Columbia where employees work in safety-sensitive positions. In 1999, Teck’s predecessor implemented a drug and alcohol policy that subjected employees to mandatory testing where the employer either had reasonable cause to believe the employee’s work performance had been affected by a substance or where an employee’s conduct contributed to a significant safety-related event. Teck’s policy was upheld by an arbitrator in 2002.

In late 2012, Teck expanded those policies, imposing random drug and alcohol testing on all of its employees.  The policy required employees to provide bodily fluids and breath samples. If an employee’s result was positive, the employee was required to meet with an addictions specialist and to disclose personal health information.

Arbitrator Kinzie ruled that Teck’s random drug and alcohol testing policy was unjustified and violated the collective agreement between the parties. In striking down the policy, Arbitrator Kinzie emphasized the importance of employees’ right to privacy, and held that Teck’s policy intruded on that right in “a very invasive manner.”  The arbitrator held that the policy’s requirements that employees provide physical samples as well as personal health information to an addictions specialist touched upon employees’ “biographical core”. Notably, Arbitrator Kinzie dismissed Teck’s argument that employees in safety-sensitive workplaces have no expectation of privacy with respect to illegal drug use. He ruled that the right to privacy in this context is akin to the protection against unreasonable searches and seizures in that it exists irrespective of legality of the drugs tested for.

Arbitrator Kinzie ruled that in order to justify such a serious intrusion on privacy rights, Teck must establish a systemic cause or the existence of a general or demonstrable workplace problem. Random testing, the arbitrator explained, requires such a high level of justification because it is a form of “suspicionless” testing, with no need to show cause. He held that Teck had failed to establish the existence of a general problem that would warrant this intrusion into its employees’ privacy rights.

In arriving at his decision, Arbitrator Kinzie also considered the evidence of various experts regarding the information yielded from random tests and determined that they could not accurately establish whether an employee was actually impaired while on the job.  While the test can establish whether an employee had used substances in the past, it cannot establish whether the employee was impaired at the time of testing. In light of this evidence, Arbitrator Kinzie found that the random testing statistics cited by the employer did not establish that there was an abuse problem in the workplace, only that employees were using drugs.

Teck also argued that it would be harmful to set aside a policy which, it asserted, had been accepted by employees and had beneficial effects on them. The arbitrator rejected this argument and refused to shift the burden to the union to establish it would not be harmful to eliminate an unreasonable policy.

The 124-page decision, available here, provides a comprehensive review of the jurisprudence to date on the issue of random testing, and can be helpful to unions challenging random testing policies implemented on the basis of risk speculation. The decision further reinforces the value of employees’ privacy rights in the workplace with respect to personal health information. As Canada inches towards the legalization and regulation of marijuana, it is likely a growing number of employers will turn their minds to performing drug testing in the workplaces and that unions will be faced with similar issues with increasing frequency.

[1] 286 L.A.C. (4th) 1; 2018 CanLII 2386 (BC LA)

[2] 2013 SCC 34

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