Written by Michael J Weiler
First posted in April 2015, re-posted June 2016
Sometimes you have to think outside the box. When I first began practicing labour law one of my clients had a very unique situation. They were in the business of placing glass on the outside of a new, very tall office building. The unionized installers had to install the glass skin on the outside of the building and as they worked from scaffolding they were secured by a 3 strand safety rope. There had been some turmoil in the workplace and one day, much to my client’s horror, they discovered that on certain safety ropes 2 of the 3 strands had been cut. The job was immediately shut down. Everyone had strong suspicions who had done it but there was no direct proof. How to get the crew back but ensure whoever sabotaged the worksite did not come back? Thinking outside the box we required everyone to take a polygraph (lie-detector) test. All but one person took and passed the test; the company terminated the one employee and invited the crew back.
Not surprisingly the union grieved the termination. It argued lie detector tests were inherently unreliable; the employee had a right to privacy. Therefore his refusal to take the test could not have supported his termination from the job site. They claimed it was an unreasonable condition for the return to work. I argued the arbitrator should focus on 3 things important in the case—safety, safety and safety. The arbitrator found that polygraph evidence was unreliable and upheld the grievance. We lost the battle but not the war. That individual did not return to the workplace.
Fast forward to today. One of the hot topics is drug and alcohol testing in the workplace especially in safety-sensitive operations. Employers took a big hit in their quest to have such testing when the Supreme Court of Canada struck down the employer’s random alcohol testing. While the case dealt with a unionized workplace and the review of an arbitrator’s decision prohibiting the testing, the decision reflects the court’s balancing of interests:
Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly the case when the workplace is a dangerous one: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34 (para. 1)
One of the key problems employers face in establishing the legitimacy of such random testing is the reliability of such tests is proving not just that drugs or alcohol are in the system but also that the employee is impaired. While alcohol testing is generally considered reliable in assessing current impairment, drug testing is generally not. Despite advances in drug testing (e.g. the swab test) there is still a great deal of uncertainty in connecting the results of a positive drug test to actual impairment at the workplace. And there are other practical difficulties in such testing e.g. the samples needed to take time to test so the results are often delayed.
A number of years ago Gabe Somjen, head of Borden Ladner Gervais’ labour and employment group in Vancouver, presented a paper on impairment testing. He suggested replacing or at least augmenting drug and alcohol testing with impairment testing as impairment is what employers, employees and unions should be concerned about. But in order to have such successful testing employees need to feel secure in taking tests and being honest as to their condition. Impairment is not just related to abuse of alcohol or drugs—it is caused by many factors—sleep apnea; caring for a newborn during the night; etc.
In the Spring of 2015, Gabe presented another session on the need for impairment testing, for the BC Business Council, and I was privileged to attend. He was joined this time by Dr. Ray Baker, a leading specialist in this field. Together they made a compelling argument that employers, employees and unions should take a different look at substance abuse in the workplace by first focusing on impairment and then moving to more appropriate testing for drugs and alcohol. The argument is, it is better to treat substance abuse by having employees and unions buy into a program that identifies the impairment.
Gabe and Dr. Baker have kindly consented to me publishing their presentations on my blog. I attach to this article with permission of Gabe and Dr. Baker their slide presentations which I am confident you will find of interest. The tragedy of the Lufthansa plane crash caused many common folk and academics to think of situations where privacy rights may need to take a back seat to safety, and sadly, heightened the awareness of the problem and the need to consider alternate preventative measures.
Michael J Weiler
April 20th, 2015; June 28th, 2016