'I don't really think employers ought to be making a medical judgement about what's relevant and not relevant'
A British Columbia company breached an employee’s privacy with the information that it gathered and shared from an independent medical examination (IME) as part of its drug and alcohol policy, an arbitrator has ruled.
Employers must be careful not to go too far in such assessments when trying to determine if an employee is able to return to work, says Mike Hamata, an employment lawyer and partner with Roper Greyell in Vancouver.
“I don't really think employers ought to be making what is a medical judgment about what’s relevant and what's not relevant for investigating a potential substance abuse issue,” says Hamata. “It's something that should be left open to the substance abuse professional who's doing the IME.”
Substance abuse policy
Seaspan ULC is a marine transportation and shipbuilding company with shipyards in Vancouver and Victoria. It had a substance abuse policy that allowed for mandatory reasonable cause or post-incident drug and alcohol testing.
The policy warned that a refusal to submit to testing was a violation subject to discipline up to and including termination. It also stated that an employee who tested positive may have to attend an IME before returning to work.
The 54-year-old worker was a flame plane operator (steel cutter) at the Vancouver Shipyards with no discipline or performance issues on his record.
On June 21, 2019, the worker was involved in a workplace incident. Although his direct supervisors didn’t recommend a drug and alcohol test, the employee relations manager felt the supervisors had failed to consider reasonable cause criteria — the worker had recovered from past addiction — and ordered a test.
Read more: An Alberta court upheld post-incident testing after a near-miss as reasonable due to the potential harm from the incident.
The worker resisted, saying he had been sober for seven years and Seaspan didn’t have a right to test him as he felt the criteria for demanding a test weren’t present. He was told to leave and he called his Alcoholics Anonymous sponsor, who recommended that he get tested. He went to a walk-in clinic, where he tested negative for all substances.
Meanwhile, Seaspan decided that, because of the worker’s past addiction issues, an IME would be the only way to know if he had relapsed.
The worker attended the IME on July 16. The doctor asked him about all aspects of his life and took urine and hair samples, leaving the worker feeling degraded. The IME doctor also contacted the worker’s wife and personal physician for more information.
Detailed medical examination
Seaspan received the IME report on July 30, which included the worker’s entire medical history including his personal history, romantic and sexual activities, and current medications. The report indicated that the worker met the diagnostic criteria for substance dependance, but there was no evidence of recent use. The IME doctor concluded that no monitoring or restrictions were necessary.
Seaspan shared the IME report with the union and the worker. The worker was paid for the time he was off work while waiting for the IME, with the exception of 10 days to serve as a suspension for his refusal to submit to a test.
The worker’s union filed a grievance over the intrusiveness of the IME and the suspension.
Read more: A B.C. company’s drug and alcohol policy went too far in essentially requiring medical examinations, an arbitrator found.
While the worker consented to Seaspan sharing the IME report with the union, that consent was given before the worker knew how detailed it would be, says Hamata.
“The big problem was the employer’s decision to just provide the unredacted report to the union on the basis of the employee’s earlier instructions to do so, but it looks like that instruction was on the basis of employee’s misunderstanding of what would be covered in the IME.”
Arbitrator weighs in
The arbitrator found that while the worker may have been surprised by the order to be tested, the worker didn’t show any regret for his “combative rather than co-operative” demeanour and he appeared to be intent on challenging the substance abuse policy. In addition, regardless of his motives, it was a serious act to refuse to comply with the policy in a safety-sensitive workplace, said the arbitrator, in finding that the suspension was appropriate.
However, Seaspan determined the length of the suspension without assessing the worker’s individual circumstances — such as his years of sobriety and his role as a mentor to others with addiction and mental health issues. In recognition of that, the arbitrator reduced the suspension to six days.
“All of the facts were there for the employer to look at the individual context of this employee and arrive at the 10-day suspension, and if they had said that they had done that, [the suspension] would have been upheld,” says Hamata. “But the employer’s only justification for the 10 days was that ‘This is what we always do,’ which in some cases can be enough where there’s union acquiescence and developed practices, but it doesn't look like there was any evidence of that.”
The arbitrator recognized Seaspan’s right to establish that the worker could safely return to the workplace and the policy stated that an IME “may be required,” but it wasn’t automatic. The IME report discussed aspects of the worker’s life that weren’t relevant to his fitness to work and it was emailed to the union and the worker, creating an electronic copy over which the worker had no personal control.
This was a violation of the worker’s privacy, said the arbitrator.
“It would have been good for the employer to go back to the employee and say, ‘Here's the scope of the IME and everything that it contains. Are you sure you want us to send this to the union?’” say Hamata. “In situations like this, that's probably a good practice for all employers, even if you think you've got prior consent to send the contents of an IME to the union.”
Seaspan was ordered to pay the worker $5,000 in damages for the breach of his privacy. Hamata says that the decision is a reminder to employers that although they have a right to get sufficient information to determine a fitness to work safely, there are often better ways to do it than resorting to an intrusive IME.
“The drug and alcohol policy permitted [Seaspan] to ask for an IME, but it wasn't mandatory in these circumstances — arbitrators have been clear that an IME should never be a first step and is more often a last step,” says Hamata. “The employer seems to have almost reflexively elevated this to an IME, but it wasn't justified in the arbitrator’s eyes — a questionnaire about whether it was safe to return to work for the employee’s treating physician might have been reasonable.”
See Vancouver Shipyards Co. and CMAW, Local 506 (P.Q.), Re, 2021 CarswellBC 4190.
