Sober Second Thought Key to Proving Reasonable Cause for a Drug Test

August 2019

Article by: Drew Demerse

Drug and alcohol testing has become both more common, and more accepted, in safety sensitive workplaces.  When an employee’s appearance, behaviour, speech, motor skills, or body odour suggest recent drug or alcohol use, an employer will have reasonable cause to require a drug and/or alcohol test to determine whether it is safe for the employee to be at work.  When an employee is involved in an accident or a near miss, post-incident drug and alcohol testing is appropriate to rule out impairment as a cause of the safety incident.

Two recent arbitration decisions serve as good reminders that while the law is clear that testing is permissible in these circumstances, employers will be held accountable for making reasoned decisions.

In Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Smith Grievance)[1], a supervisor caught a subway track mechanic sleeping during his nightshift in a vehicle.  When the supervisor found him, he could not wake him by knocking on the vehicle’s window. It was at this point he decided he would require a drug and alcohol test once he could wake him up.  After being roused, Mr. Smith tried to explain why he had fallen asleep – personal issues meant he had barely slept in days. His supervisor refused to hear his explanation.

The supervisor demanded a reasonable cause drug and alcohol test.  As is usually the case, the supervisor was required to complete a form to explain the decision to test.  On the form, the supervisor recorded that Mr. Smith was drowsy, speaking slowly, and was exhibiting weariness, fatigue, and exhaustion.

Mr. Smith refused to take the drug and alcohol test. By the time of this discussion, he was no longer drowsy. Instead, he was upset and irate.  Under the employer’s policy, his refusal was treated the same as if he had tested positive.

The arbitrator held that management failed to consider the employee’s explanation for falling asleep at work, and further that there was no reason to believe his appearance on being awoken had anything to do with drugs or alcohol.  As a result, the arbitrator concluded that the employer did not have reasonable cause to demand a drug or alcohol test.

In Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union, Local 1 (C.L. Grievance)[2], an employee reported for work smelling of alcohol.  Three co-workers were concerned, and reported the employee’s state to management.

The employer required the employee to undergo drug and alcohol tests because he smelled of alcohol.  The drug test was positive for cocaine and MDMA (ecstasy), but the breathalyzer was below the cutoff level for alcohol in the employer’s policy.

The arbitrator concluded that while there may have been grounds to demand a breathalyzer to test for alcohol, there were no grounds to test for drugs.

The problem with the employer’s investigation was that the supervisor did not record anywhere on the testing form that he was requiring the test for any reason other than the smell of alcohol.  For example, the supervisor did not record that the employee had bloodshot eyes or slurred speech, which could have been caused by drugs and/or alcohol.  Since the only concern was the smell of alcohol, the employer did not have reasonable cause to test for drugs.

Takeaways for Employers:

When scrutinizing a decision to require a drug and/or alcohol test, an arbitrator is required to engage in a balancing of interests between an employee’s right to privacy and the employer’s obligation to ensure workplace safety. 

Supervisors are given some deference because the decision to test necessarily involves a degree of subjectivity.  Justifying a decision to test is more likely where the supervisor:

  1. personally observed the employee’s state, and spent at least several minutes in their presence;
  2. recorded all of their observations on the appropriate form, or in a set of notes (and not just what they smelled); and
  3. gave the employee an opportunity to explain their state, and considered the explanation.

The supervisor should also ask the employee when they last used drugs or alcohol. Statements made in response are often helpful in interpreting test results.  The employee’s honesty (or lack of) is also a relevant factor to consider when determining what discipline may be appropriate as a result of a positive test.

[1] Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Smith Grievance), 2019 OLAA No. 121 (Johnston)

[2] Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union, Local 1 (C.L. Grievance), 2018 BCCAAA No. 34 (McPhillips)