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Random drug and alcohol testing regime rejected as unreasonable invasion of privacy

Topics: - Drugs & Alcohol - Privacy
Jurisdiction: - British Columbia
Sector: - Mining

The recent arbitration award Teck Coal Ltd. (Fording River and Elkview Operations) v. United Steelworkers, Locals 7884 And 9346, 2018 CanLII 2386 again clarifies the relatively high hurdle employers must meet to impose random drug and alcohol screening in safety sensitive workplaces. 

The arbitrator affirmed the general arbitral consensus that employers must establish a workplace safety problem that is sufficient to warrant the intrusion of random testing, but that in doing so an employer may use evidence relating to workers falling outside of the bargaining unit, including workers represented by other unions at other worksites and also third party contractors.

In this case the arbitrator rejected the employer’s reliance on theoretical safety risks, and found the safety benefits were not proportional to the significant harms to employee privacy.

This decision will be considered either a setback or a promising return to the status quo for those who saw Stewart v. Elk Valley Coal Corporation2017 SCC 30 as suggesting juridical movement towards more stringent attitudes around drug and alcohol use in safety sensitive workplaces.

As a point of interest, one of the arbitrator’s many conclusions included the observation that there was no evidence tying any particular accident or injury to an employee under the influence of drugs and alcohol. This may be discouraging to employers at safety sensitive operations who often argue the purpose of random drug and alcohol testing is to prevent such accident or injury before it (inevitably?) arises. Query whether the arbitrator’s observation, which is in alignment with the general jurisprudence, implies a drug and alcohol related accident "threshold" by which employers will then be permitted to introduce random testing.