April 27, 2018
The recent decision in Canadian Energy Workers’ Association v ATCO Electric Ltd. does not change the law with respect to post-incident drug and alcohol testing, but it does help to clarify when an employer may be justified in ordering an employee involved in an incident to undergo drug and alcohol testing. Something that is helpful as the legalization of recreational use of cannabis fast approaches (likely now to be in late Summer or early Fall).
The incident at issue happened at a remote worksite outside of Fort McMurray where a crew was installing transmission towers. Mr. Vanderkley and Mr. Potter were working at the site and both were employees of ATCO Electric Ltd. On March 4th, 2015 Mr. Vanderkley directed Mr. Potter to move a Nodwell, which was parked at the bottom of an access road, up to the work site. A Nodwell is a large vehicle with caterpillar-like tracking and restricted visibility to the rear and sides. Mr. Potter did a circle check around the Nodwell and then got into it. He spent about five minutes completing paperwork before beginning to back up. In the meantime Mr. Vanderkley, trying to ease congestion on the access road and expecting Mr. Potter to pull forward, moved the truck he was driving to the side of the road and into the Nodwell’s blind spot. Fortunately, Mr. Vanderkley saw the Nodwell approaching his vehicle and moved his truck (although not before the Nodwell struck the truck causing some damage).
The incident was reported to the supervisor who, after further consultation, decided to have both employees tested for drug and alcohol impairment pursuant to ATCO’s Fitness for Work Policy.
The Union (Canadian Energy Workers’ Association) grieved the testing, saying it was off-side the policy. An Arbitration Board dismissed the grievance in 2017, finding that ATCO was justified in requiring Mr. Vanderkley and Mr. Potter undergo drug and alcohol testing in the circumstances.
The Union was not happy with that decision and sought judicial review of it. The primary issue for the Court of Queen’s Bench on the judicial review was whether the employer was justified, in these circumstances, in ordering the two employees to undergo drug and alcohol testing.
The Court upheld the decision of the Arbitration Board. It too found that the testing was in line with the policy.
In dismissing the Union’s grievance, the Court rejected the proposition that an employer needed evidence of impairment before requiring testing (distinguishing post-incident testing from reasonable cause testing). The Court also rejected the proposition that an employer can test for impairment post-incident without any assessment as to the cause of the incident. So the two ends of the spectrum were both found to be unreasonable, while a middle ground approach was found to be the right one.
Even though the Court ultimately agreed that evidence of impairment was not necessary to justify post-incident testing, it also warned that there had to be information about the incident and the employee’s connection to it to justify the testing.
In this case, the employer had determined that Mr. Potter and Mr. Vanderkley made a mistake in judgment when they attempted to move the Nodwell without a spotter. Both had taken training at the worksite that covered the need for a spotter when moving the Nodwell. In addition, the employer had reviewed the requirement following another incident with a Nodwell just a few weeks earlier. Both employees knew of the limited visibility of the Nodwell.
Given that the employees involved failed to follow basic and known safety rules, and the incident was caused by human error based on poor judgment, the Court held that it was reasonable for the employer to require drug and alcohol testing in order to rule out impairment as a contributing factor in the incident.
The Court’s decision confirms the common law on post-incident testing. It also reminds employers that the assessment of the link between the incident and the employee’s role is a nuanced and fact-specific exercise that the employer must undertake before requiring drug and alcohol testing. This is necessary in order to ensure that employers are appropriately balancing the obligation to protect the health and safety of their workers and the public on the one hand and the employee’s privacy interests on the other.
If you are looking to update your workplace policies, or if you have any questions about this topic, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.