Canadian Employment Law Today

B.C. arbitrator sets aside random drug and alcohol testing at coal mines Company couldn't prove workplace problem with drugs and alcohol that justified collection of employees' personal information BY JEFFREY R. SMITH T he latest round in the conflict over random alcohol and drug testing in the workplace has gone in fa- vour of workers and unions, as an arbitrator has ruled a British Columbia coal mining company cannot continue its testing of workers without evidence of a real prob - lem with impairment at its facilities. Teck Coal operates five coal mines in southeast B.C. that feature mine operations, mine maintenance, and coal plant opera - tions. e mines operate heavy equipment such as large haul trucks, electric shovels, dozers, loaders, graders, and fuelling equip- ment, often in close proximity. e mines also run 24 hours a day, seven days a week in all types of conditions. On Oct. 14, 1999, the company that ran the Fording River mine before Teck as - sumed control unilaterally implemented a drug and alcohol policy that prohibited the use, possession, and distribution of alcohol and any illegal drug while on duty at the mine. e policy also prohibited use off-du - ty if it would adversely affect work perfor- mance and implemented mandatory testing if there was reasonable cause to believe a worker's performance was affected by drugs or alcohol. Violation of the policy could lead to "disciplinary action up to and including dismissal," but it also offered assistance to employees with addiction or dependency issues who voluntary sought help. Testing for both drugs and alcohol was done by uri - nalysis post-incident or in circumstances of reasonable cause. An arbitrator upheld the policy following a union grievance in January 2002, finding employers didn't need a policy for reason - able cause or post-incident testing and the policy put employees on notice that tests would be demanded. In 2003, Teck's prede- cessor at another of the mine sites, Elkview, implemented the same testing policy. While some were uncomfortable with the effect random testing had on employee privacy, it was seen as a part of the overall reduction of risk and improvement in workplace safety. Over the next several years, the testing policies at both mine sites became accepted parts of the operations and were seen by both the employers and the unions to be working well. By 2012, lost time injuries and medical aid requests decreased at both op - erations and overall safety was viewed to be improved. In addition, workers' compensa- tion premiums were reduced at both sites. New policy and random testing introduced By 2012, Teck had taken over both the Fording River and Elkview mines along with three others in the region. e com- pany consulted several experts in drug and alcohol testing who expressed the view that such testing was a part of "a risk management approach to workplace safety" in safety-sensitive workplaces and reduced the risk of employee impairment through deterrence. e experts also held the view that reasonable cause and post-incident testing were of limited pre- vention use because safety was already at risk by the time such testing is done. From 2008 to 2012, Teck's data showed it conducted 412 post-incident drug tests and two reasonable cause drug tests at Ford- ing River, which had 965 employees. 10 of those tests came back as positive, resulting in eight terminations (with two reinstate- ments on last chance agreements) and two resignations. In the same period, seven employees asked for help with their drug and alcohol problems and all were subject to monitoring and last chance agreements. Of those seven, three were terminated after testing positive on a random test that was part of their monitoring. Teck's data on Elkview for the same peri - od showed 184 post-incident drug tests with four positive tests. ree of the employees were terminated but later rehired on last chance agreements and one resigned. 11 of the 1,000 employees at the mine asked for assistance. Following the consultations, Teck re - vised its alcohol and drug policies at all five of its mines. e revised policy prohibited a blood alcohol concentration of 0.02 — a cut-off used by the U.S. Department of Transportation and other agencies — while at work as it was considered a safety risk, while also prohibiting possession, use, or distribution of alcohol at any of Teck's work sites. Positive alcohol tests following an in - cident faced termination and those follow- ing a reasonable cause test were to be placed on a medical leave of absence and referred to an addictions specialist. A refusal would be treated as a positive test. Teck's new policy also encouraged em - ployees with dependency issues to come forward and the company would place them on a paid medical leave while they sought treatment at the company's expense. What caused the most reaction, however, was that the new policy also introduced random testing for all employees in order to enhance the deterrence element. e test - ing would be done by trained personnel in separate facilities to help with confidential- ity and employees were selected by a third- party computer company. A breathalyzer was to be used for alcohol tests and urinaly- sis for drug tests. Introduction of the new policy was to be staggered rather than at all of the mines at the same time so Teck could learn from each experience and make adjustments if necessary. e unions at four of the mines including Ford River and Elkview — the fifth wasn't unionized — grieved the new policy over privacy concerns from "the seizure and testing of employees' bodily substances." 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: DRUG AND ALCOHOL TESTING ONCE MORE, the issue of random drug and alcohol testing has come up within an industry where safety sensitive workplaces abound. The industry this time: coal mining. While post-incident and reasonable cause testing were introduced and accepted years ago in certain British Columbia coal mines, when the employer tried to introduce random testing, it didn't go quite so smoothly. And in the end, it followed the trail established in recent decisions elsewhere. BACKGROUND

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