Canadian Employment Law Today

Post-incident testing for serious incidents only Employer had right to order employee to take post-incident drug and alcohol tests — but not for a minor incident where drug and alcohol use can be easily ruled out BY JEFFREY R. SMITH A n Ontario employer's drug and alcohol testing policy is good, but the employer didn't correctly ap- ply it when ordering a worker to be tested following a workplace incident, an arbitrator has ruled. George Degg, 69, was an electrician with Jacobs Industrial, a Toronto-based indus- trial engineering firm. Degg worked on- and-off for Jacobs since 1997 and was hired full-time in 2008. Other than once being cautioned to use his earplugs, he had nev - er been disciplined during his tenure with Jacobs and was co-chair of the company's joint health and safety committee for a time. He was also a steward. Jacobs was the maintenance contractor at a Suncor lubricants refinery in Mississauga, Ont., which was a highly safety sensitive site with pressured materials and poisonous gases. ere were also risks of explosions, electric shocks, and releases of hot steam and toxic substances that could cause burns. As a result of its safety sensitive operations, Jacobs had a drug and alcohol policy that required post-incident testing if external factors were eliminated as a possible cause of the incident. e policy defined an incident as "an oc - currence, circumstance or condition that caused or had the potential of causing dam- age to person, property, reputation, security or the environment." It also stipulated that employees who refused to participate in in- vestigations and submit to alcohol and drug testing would be subject to discipline, up to and including termination of employment. However, testing could not be required au - tomatically; it would be required only fol- lowing an investigation to determine if al- cohol or drug use couldn't be ruled out as a cause of the incident. If it was clear drugs or alcohol weren't a factor, supervisors could waive testing under the policy. Degg's job was specified under the policy as a safety sensitive position "in which in - capacity due to drug or alcohol impairment could result in direct or significant risk or injury to the employee, others or the envi- ronment." He had been trained on the policy and had signed acknowledgment of it when re-hired in 2008. In addition, as a steward he was responsible for the orientation of new electricians onsite and went through the company policies with them. As a result, he was very familiar with Jacobs' policies, including the drug and alcohol policy. When the company implemented the policy, the union's business agent felt it couldn't require testing of its employees at all, based on the Ontario government's failure to specifically address it. He advised union members, including Degg, that they didn't have to comply with the testing and the union would grieve any discipline for re - fusals. Degg also informed new electricians of the union's position during orientation. Fender bender in parking lot On May 30, 2012, Degg was driving a Sun- cor pickup truck to the Jacobs onsite office to see his general foreman. e office was in a trailer on the Suncor site. Degg was wear- ing a hard hat, safety glasses and ear plugs, the safety equipment required for the site. Reverse parking was mandatory on the Suncor site, so Degg drove the truck in a large sweeping arc in the parking lot so he could see everything, before reversing into a spot. However, instead of backing into an empty spot, he hit another vehicle parked by the trailer office which he hadn't seen. He didn't turn around to look directly back because he had a herniated disk and could only turn around if he took off his seatbelt — which he didn't want to do since he didn't want to drive without the seatbelt on. Two other workers were standing in the parking lot as Degg arrived and observed him circle around the lot. ey saw him briefly stop, adjust his mirrors, and reverse into the parked car. Degg didn't ask them to assist him, and one of the workers claimed they didn't have time to offer any help be - fore he started to reverse. One of the work- ers tried to get Degg's attention by waving to warn him, but Degg didn't see him and his windows were closed. e trailer hitch of the pickup truck hit the parked vehicle and caused minor dam - age. Degg asked the other workers why they didn't spot him, and one of them asked "Are you kidding?" since they felt he hadn't given them the opportunity to do so. Jacobs policy for reversing to park required any employee alone in a vehicle to ask anyone nearby to spot and any employee standing in a park - ing lot where a vehicle was backing up was obliged to offer assistance. Degg asked if anyone was in the trailer, to which they replied that the site superintendent was. Degg looked for the general foreman and claimed not to have seen the site superintendent, so he left in the truck to remove a lock on a transformer that he needed to take care of before the end of his shift. e other workers found the superintendent in the trailer and reported the incident. e superintendent radioed the general foreman to find Degg and bring him back to the trailer. Degg explained that he hadn't seen the ve - hicle he had backed into and didn't ask the others to help spot him. He also said he left the scene to find the foreman. No one at the time noticed anything in Degg's behaviour or appearance to suggest impairment. e superintendent completed a check - list that Jacobs had for management that was used to identify causes of the incident and what corrective action was needed, and determined if the incident had not been caused by any outside factors. Degg's omissions were found to be contributing factors and, since alcohol or drugs couldn't be ruled out, Degg was ordered to take a test. DRUG and alcohol testing of employees is a contentious issue in many workplaces. The balance of employee privacy rights versus workplace safety can be tricky, as many differing legal decisions have demonstrated. Employers with safety sensitive workplaces can usually justify post-incident testing to determine if employee impairment contributed to the incident, but only to a point. Employers should be careful to ensure workplace safety is actually at risk before resorting to the invasive process of testing employees for drug and alcohol use. Less-invasive means of investigation are preferred whenever possible. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: DRUG AND ALCOHOL TESTING

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