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ey argued there wasn't evidence of a sig- nificant problem in the workplaces that war- ranted the invasion of employees' "privacy, integrity, and freedom of movement" or any proof that random testing would improve workplace safety. e privacy violation con - travened the collective agreements, human rights legislation, and privacy legislation, the unions said. Collection of personal information needs justification e arbitrator acknowledged that Teck's drug and alcohol testing policies "generate personal information about the employee being tested, i.e., whether he has alcohol or drugs in his system and if so, at least in the case of alcohol, in what concen- tration." is information was passed on to an addictions specialist if the test was positive, who would be acting on behalf of the employer. Under privacy standards — in this case B.C.'s Personal Information Protection Act — Teck would have to jus- tify the collection, use and disclosure of the information as necessary for manag- ing the employment relationship. Teck admitted that its new testing policies and random testing infringed on employee privacy, so it was left for the arbitrator to de- termine if there was sufficient cause for such an infringement and if it was a proportion- ate response to that cause. e arbitrator found that Teck's random testing policy intruded on employees' priva- cy "in a very invasive manner," as it required employees to submit to the tests and pro- vide bodily fluids and breath samples. It also required employees to meet with an addic- tions specialist and disclose personal health information in the event of a positive test. e arbitrator also found that Teck's mines could be considered dangerous and safety sensitive, given the nature of the work and the equipment used at the sites. How - ever, this alone didn't justify random testing. e arbitrator pointed to the Supreme Court of Canada's 2011 decision in Irving Pulp and Paper Ltd., where the top court stated that unilateral implementation of random test - ing shouldn't be allowed without proof of "a demonstrated workplace problem." A look at the evidence didn't show such a problem at Teck's mines and was not the reason the company implemented the new policy, the arbitrator said. "e genesis of the idea to implement ran - dom drug and alcohol testing in Teck Coal's …coal mines was not any specific problem with substance abuse in any of those work- places. Instead, it was an element of risk that Teck Coal foresaw could impinge on safety in its mine operations and accordingly it sought to manage that risk so as to, as much as possible, eliminate it," said the arbitrator. "After consulting with substance abuse ex - perts in relation to drugs and alcohol, Teck Coal decided to adopt random testing as the best way of deterring employees from en- gaging in this risky behaviour." While recognizing that Teck's reasons for random testing to maintain a safe workplace was reasonable, the arbitrator found there was a difference between a safety risk — "a hypothetical state of affairs" — and a prob - lem — an actual state of affairs supported by evidence that is difficult to control. Given the invasiveness of testing, a hypothetical state of affairs didn't cut it as justification, said the arbitrator. In addition, the arbitrator pointed to Teck's strong safety record and efforts which made its operations already safe places to work. ough its testing policy was part of its safety plan, its other efforts made con - flicts with employee privacy rights through random testing unnecessary. While Teck's approach was "carefully designed" to deter employees from coming to work with drugs or alcohol in their systems, there was no evi - dence random testing would have a signifi- cant effect on the likelihood of it happening, said the arbitrator. Teck's data indicated there were some positive tests discovered from post-incident and reasonable cause testing, but the num - bers — about three per cent between 2008 and 2013 — coupled with its random testing numbers following implementation — 1.13 per cent positives in 2013, 0.41 per cent in 2014, and 0.88 per cent in 2015 — didn't show there was a "demonstrable workplace problem." e court also noted that urinaly - sis tests weren't reliable for drugs such as marijuana, which show past use but not cur- rent impairment, and the alcohol limit didn't reflect the differences in how much can im- pair different people. "e random testing statistics do not prove that the employer's employees are abusing alcohol or various illegal drugs," the arbitrator said. "ey can only prove that employees are using them." e arbitrator determined that Teck didn't have evidence to prove there was a significant problem with drug and alcohol abuse at its mines and therefore couldn't jus - tify violating employee privacy rights with random testing of its employees. Teck was ordered to set aside its random alcohol and drug testing policy. For more information see: • Teck Coal Ltd. and USW, Locals 7884, Re, 2018 CarswellBC 119 (B.C. Arb.). Canadian HR Reporter, a Thomson Reuters business 2018 February 28, 2018 | Canadian Employment Law Today CREDIT: 1968/SHUTTERSTOCK ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

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