Smelling of Alcohol Not Reasonable Cause to Test for Drugs

by & Ava Z Moradi, JD, Editor, First Reference Inc.

A British Columbia Arbitrator recently held in a preliminary award that an employee who reported to work smelling of alcohol did not provide the employer with reasonable cause to test that employee for drugs.

What happened?

An employee working in a safety-sensitive position as a labourer at a marine repair works smelled of alcohol when reporting for his shift. Though the employee did not demonstrate any other signs of potential impairment, the employer required him to submit to a urine test for drugs and a Breathalyzer test for alcohol.

To do so, the employer relied on the workplace alcohol and drug policy, which permits the employer to require an employee to undergo drug and/or alcohol testing if the employer reasonably believed that the employee’s work performance may be affected by the use of alcohol or drugs.

The employee agreed to a Breathalyzer test for alcohol impairment but resisted taking a urine test and asked what the consequences would be if he refused. He was told that according to the employer’s drug and alcohol policy, if he refused to submit to the urine test it would be deemed a positive test result and he would be suspended. So the employee agreed.

Though the employee passed the Breathalyzer test, the results for the urine testing came back inconclusive for having consumed cocaine and MDMA within the previous 24 hours. Based on the results, the employer suspended the employee with pay pending the outcome of further testing.

The employee’s union grieved the employee’s suspension, the decision to drug test and the search of the employee’s locker. The union believed that the employer did not have cause for these actions.

Subsequently, the employer received further test results from the laboratory which showed that the employee’s “[…] urine sample as positive MDMA and cocaine metabolite, but negative for all other substances.” As a result, the employer terminated the employee’s employment.

The union proceeded to also grieve the employee’s termination.

This decision is a preliminary decision dealing with the admissibility of the results of the urine test which was required of the employee.

Preliminary arbitration decision

The arbitrator examined the language of the policy (which is not challenged in this case), to determine if it is reasonable in the circumstances for the employer to require the employee to submit to a urine test. “Rather, this dispute centers on whether the Policy was applied appropriately in those particular circumstances. This situation involves ‘reasonable cause’ testing rather than post-incident testing, both of which are covered in the Policy.”

According to case precedents, “Reasonable cause test requires that there be some basis on which alcohol and/or drug testing can be justified.”

While the employee smelled of alcohol, he did not exhibit any signs of impairment that might reasonably suggest that he had been using drugs. The employer’s only reason to subject the employee to both alcohol and drug tests was the smell of alcohol. Though the safety-sensitive nature of the employer’s work awards the employer with some deference when assessing reasonable cause, the arbitrator concluded that the employer lacked reasonable cause to require the employee to take a drug test.

According to the arbitrator,

“With respect to many, if not most of those factors, it may be impossible to know in a particular situation what is the cause, be it drugs or alcohol or even personal circumstances, so a testing for both drugs and alcohol would clearly be appropriate. The arbitral and judicial authorities establish that where, for example, there is clear evidence of impairment and it is unclear whether that may be caused by alcohol or drugs, it would be reasonable to test for both.

However, in the case of ‘C.L.’, the only trigger identified by the Employer was the odour of alcohol. In my view, it is appropriate in that circumstance to distinguish between drug and alcohol testing.”

Despite the odor of alcohol, there was complete absence of impairment requiring the employee to submit to a drug test. The urine (drug) test required of the employee was not based on reasonable grounds and therefore inadmissible and cannot be relied on.

Source: Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union, Local 1 (C.L. Grievance) [2018] B.C.C.A.A.A. No. 3

Takeaways

As with alcohol testing, the focus of drug testing should be on determining actual impairment of an employee’s ability to perform or fulfill the essential duties or requirements of the job at the time of the test.

It has been expressed by human rights commissions that “reasonable grounds” should be informed by objective evidence, such as specific observed behaviours or other indicators, including:

  • Seeing someone use alcohol or drugs at work;
  • An employee appearing or acting in a way that is consistent with someone impaired by drugs; or
  • Substances or substance paraphernalia in the vicinity of the employee or the area where the employee works.

The employer in the case above lost the arbitrator for this very reason, a lack of objective evidence on which to ground the employer’s decision to test for drugs.

Employers are reminded to ensure comprehensive workplace alcohol and drug and alcohol and drug testing policies be established, and should refer to it when assessing reasonable cause before ordering alcohol or drug testing or a combination of both. Also as stated in this case,

“All of the authorities in this area of the law emphasize that what is required is a balancing of interests between an employee’s right to the privacy and the integrity of his or her person with the legitimate business and safety concerns of the company.” “This failure to consider the difference between the appropriateness of a drug and an alcohol test indicates the Employer did not properly consider and balance the Grievor’s privacy interests.”

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