Testing 'part of investigation process to rule out potential factors': lawyer
“Post-incident drug and alcohol testing is part of the investigation process. An employer doesn’t have to complete its investigation before deciding to engage in post-incident testing, but at the same time it has to balance any decision made with the privacy and dignity interests of the employee – it has to have enough information to justify that intrusion.”
So says Ilan Burkes, a labour and employment lawyer at Harris & Company in Vancouver, after a British Columbia arbitrator ruled in favour of an employer in a case involving post-incident drug and alcohol testing of an employee.
The worker was employed as a heavy-duty mechanic since 2011 with Western Forest Products, a Vancouver-based lumber company.
On July 28, 2022, the worker was assigned to troubleshoot a malfunctioning log processor and test a proposed solution. The test was to involve lifting a log and cutting it with the processor while a co-worker observed. The supervisor didn’t instruct him on how to exactly do it, just to advise if the proposed solution worked. The worker also hadn’t been formally trained on the processor, but he had operated it a few times previously and he had the experience operating it for testing and repair purposes.
On the way to the processor, the worker and his co-worker discussed a safety plan, which was required by Western’s safe work procedures. The procedures required not only a safety plan, but for employees to always know where their co-workers are, maintain contact with others so everyone understands what is happening, and stop work if another employee was endangered. The company reviewed the safety procedures annually with employees.
The safety plan was for the co-worker to stay at the truck while the worker moved the processor down the road to a wide spot. Once the worker ensured the co-worker was clear, he would start the log-cutting test. He didn’t specifically tell the co-worker to remain at the truck while he operated the processor, but he assumed that would happen based on his experience as a mechanic and working with this co-worker.
Damage to machine
As the worker started moving the processor back towards the truck, he lost track of his co-worker’s location. He abruptly stopped the machine, causing a log to swing and damage the processor’s windshield. The worker shut down the machine and contacted the supervisor, who soon arrived and discussed the incident with him.
The worker realized that the boom on the processor created a blind spot when he lifted the log in the direction he had done, but he hadn’t thought of it at the time. He also acknowledged that he hadn’t maintained radio contact with his co-worker and didn’t complete a personal field level hazard assessment (PFLHA) before proceeding, although his supervisor had told him it was only necessary once a week or when completing a major mechanical operation.
There were no injuries, but the damage to the processor plus the time to repair it amounted to about $7,000.
Management didn’t interview the co-worker as they didn’t question the worker’s version of events in his post-incident statement. They also didn’t ask if the two workers had developed a safe work plan before the test and the worker didn’t mention it.
The supervisor filled out a post-incident checklist form indicating that he found no influences other than the worker’s care and control of the machine, with which the worker agreed. He also noted that the worker failed to do everything reasonable and practical to prevent the incident. He didn’t put much weight on the worker’s claim that he wasn’t trained to use the processor because it was a testing situation, not production.
Post-incident test
Western initiated a post-incident drug and alcohol test, citing their policy, which mandated testing after serious or potentially serious incidents unless there was “immediate evidence that the actions or omissions of the employee(s) were not a contributing factor.” The company viewed the worker’s failure to confirm the exact location of his co-worker as a serious safety lapse.
The existence of the policy helped in terms of ensuring that the worker knew he could be tested in the circumstances, says Burkes.
“[The policy] mitigated the privacy concerns to some degree, but there’s always a concern when employers have checklists for testing decisions,” he says. “Are they just going through the motions or are they truly considering the circumstances – this case leaned to the latter, where [Western] considered the circumstances and the nature of the safety violation and determined that it was appropriate to seek testing.”
The union argued that the accident didn’t qualify as a "significant" event under the company’s policy. It also noted that the worker had a safety plan in place, which involved his co-worker staying at the truck while he operated the processor, and the accident was the result of the worker immediately stopping the processor when he lost sight of his co-worker – which was a safe act, not an unsafe one.
The arbitrator determined that the damage to the processor, coupled with the safety concerns raised by the worker’s failure to confirm his co-worker’s location – a key safety rule with Western - met the threshold for a significant event warranting testing under the policy. Although the worker hadn’t been specifically trained to operate the processor, the arbitrator noted that his experience with similar equipment and safety protocols meant that he should have been aware of the importance of locating his co-worker before moving the machine.
Safety violation
Breaking a cardinal safety rule is conduct an employee simply can’t do, says Burkes.
“A cardinal safety rule is something every employee should know and a line they can’t cross that leads the employer to question what led the employee to do it,” he says. “And that's really what post-incident testing is - it's part of the investigation process to rule out potential factors contributing to an employee’s decision.”
The arbitrator also found that even though the worker wasn’t questioned after the incident or asked about a safety plan, he was given a fair opportunity to provide a complete explanation in his post-incident statement. In addition, the existence of a safety plan didn’t matter because the worker’s actions still created a safety risk, which gave rise to the company’s concern about the lapse in safety protocol, said the arbitrator.
“The worker was given a fair opportunity to provide a complete explanation, both when completing the form and later in the presence of a union representative, including the existence of the safety plan along with pertinent details about his background assumptions concerning his co-worker’s location,” says Burkes. “But even given the opportunity to describe this plan, it wouldn't explain why the worker didn't know where his co-worker was.”
The arbitrator concluded that the Western’s decision to order a post-incident drug and alcohol test was justified and reasonable under the circumstances, citing the potential safety risks involved and the absence of external factors explaining the accident. The grievance was dismissed.
Balance with privacy interests
It’s still an open question as to how much the employer needs to investigate and inquire with the employee before deciding to proceed with post-incident testing, according to Burkes.
“There's also a speed requirement - you have to act pretty quickly to make the testing decision, because sometimes that information will be lost if you don't proceed quickly,” he says. “Here they asked the worker about what contributed to the accident and they relied upon that.”
Ultimately, it was the nature of the safety rule that was broken that opened the door to post-incident testing, according to Burkes.
“The arbitrator indicated that he could see why [Western] had difficulty understanding what contributed to the accident and it needed to investigate further, including through post-incident testing.”
See Western Forest Products Inc. v. United Steelworkers, Local 1-937, 2024 CanLII 83185.
