Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2018 News | April 2018 | CSR 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 THE LATEST round in the con- flict over random alcohol and drug testing in the workplace has gone in favour of workers and unions, as an arbitrator has ruled a British Columbia coal mining company cannot contin- ue its testing of workers without evidence of a real problem with impairment at its facilities. Teck Coal operates five coal mines in southeast B.C. that feature mine operations, mine maintenance, and coal plant operations. The mines operate heavy equipment such as large haul trucks, electric shovels, dozers, loaders, graders, and fu- elling equipment, often in close proximity. The mines also run 24 hours a day, seven days a week in all types of conditions. On Oct. 14, 1999, the com- pany that ran the Fording River mine before Teck unilaterally implemented a drug and alco- hol policy that prohibited the use, possession, and distribu- tion of alcohol and any illegal drug while on duty at the mine. The policy also prohibited use off-duty if it would adversely affect work performance and implemented mandatory testing if there was reasonable cause to believe a worker's performance was affected by drugs or alcohol, or post-incident. Violation of the policy could lead to "disciplinary action up to and including dis- missal," but it also offered assis- tance to employees with addic- tion or dependency issues who voluntary sought help. Testing for both drugs and alcohol was done by urinalysis. An arbitrator upheld the poli- cy following a union grievance in January 2002, finding employers didn't need a policy for reason- able cause or post-incident test- ing and the policy put employees on notice that tests would be demanded. In 2003, Teck's pre- decessor at another of the mine sites, Elkview, implemented the same testing policy. While some were uncomfortable with the ef- fect random testing had on em- ployee privacy, it was seen as a part of the overall reduction of risk and improvement in work- place 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 operations and overall safety was improved. In addi- tion, workers' compensation premiums were reduced. 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. The com- pany consulted several experts in drug and alcohol testing who expressed the view that such testing was a part of "a risk man- agement approach to workplace safety" in safety-sensitive work- places and reduced the risk of employee impairment through deterrence. The experts also had the view that reasonable cause and post-incident testing were of limited use because safety was already at risk by the time such testing was done. From 2008 to 2012, Teck's data showed it conducted 412 post-incident drug tests and two reasonable cause drug tests at Fording River, which had 965 employees. 10 of those tests came back as positive, resulting in eight terminations (with two reinstatements on last chance agreements) and two resigna- tions. In the same period, seven employees asked for help with their drug and alcohol problems and all were subject to monitor- ing and last chance agreements. Of those seven, three were ter- minated after testing positive on a random test that was part of their monitoring. Teck's data on Elkview for the same period showed 184 post- incident drug tests with four positive tests. Three of the em- ployees were terminated but lat- er rehired on last chance agree- ments and one resigned. 11 of the 1,000 employees at the mine asked for assistance. Following the consultations, Teck revised its alcohol and drug policies at all five of its mines. The revised policy prohibited a blood alcohol concentration of 0.02 — a cut-off used by the U.S. Department of Transporta- tion and other agencies — while at work as it was considered a safety risk, while also prohibit- ing possession, use, or distribu- tion of alcohol at any of Teck's work sites. Positive alcohol tests following an incident faced ter- mination and those following a reasonable cause test were to be placed on a medical leave of absence and referred to an ad- dictions specialist. A refusal to submit to a test would be treated as a positive test. Teck's new policy also encour- aged employees with depen- dency issues to come forward and the company would place them on a paid medical leave of absence while they sought treat- ment at the company's expense. The new policy also intro- duced random testing for all employees to enhance the pol- icy's deterrence element. Test- ing would be done by trained personnel in separate facilities to maintain confidentiality and employees were selected by a third-party computer company. A breathalyzer was to be used for alcohol tests and urinalysis 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 ad- justments if necessary. The unions at four of the mines including Ford River and Elkview — the fifth wasn't union- ized — grieved the new policy over privacy concerns from "the seizure and testing of employees' bodily substances." They argued there wasn't evidence of a signifi- cant problem in the workplaces that warranted the invasion of employees' "privacy, integrity, and freedom of movement" or any proof that random testing would improve workplace safe- ty. It also violated the collective agreements, human rights leg- islation, and privacy legislation, the unions said. Justification for collection of personal information The arbitrator acknowledged that Teck's drug and alcohol test- ing 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 concentration." This information was given to an addictions specialist if the test was positive, who would be acting on behalf of the employ- er. Under privacy standards — B.C.'s Personal Information Pro- tection Act — Teck would have to justify the collection, use and disclosure of the information as necessary for managing the em- ployment relationship. The arbitrator found that Teck's random testing policy intruded on employees' privacy "in a very invasive manner," as it required employees to submit to the tests and provide bodily fluids and breath samples. It also required employees to meet with an addictions specialist and disclose personal health infor- mation in the event of a positive test. Policy > pg. 12

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