In ATCO Electric Ltd. (ATCO) v. Canadian Energy Workers Association (CEWA), 2024 CanLII 127098 (AB GAA), the Arbitration Board (the Board) found that the employer met its duty to accommodate the grievor, but nevertheless awarded CA$12,500 in damages for loss of wages and general damages for a breach of the grievor’s privacy resulting from random drug and alcohol testing.
Background
The grievor was experiencing difficulties with fatigue, focus and emotional exhaustion in his safety sensitive role as an Electrical Technologist, leading to reoccurring incidents, including a serious safety breach (the Incident).
During the investigation into the Incident, the grievor disclosed taking prescription medication for anxiety. This led to the employer’s inquiry into whether a medical problem was causing the issues with the grievor’s work performance. Based on recommendations from the employer’s third party health provider (the Health Provider), the employer requested that the grievor undergo a Substance Abuse Expert (SAE) assessment. As a consequence of the SAE assessment, the grievor was required to sign a Return to Work Agreement and undergo two years of random drug and alcohol testing. The grievor disputed the conclusions of the SAE assessment, leading to this grievance.
While subject to the Return to Work Agreement, the grievor was diagnosed with attention deficit hyperactivity disorder (ADHD). After receiving treatment for his ADHD, the grievor was able to return to his safety sensitive duties with much improvement in his work performance. However, as a result of his medication, each time he was tested during the two-year period, the grievor would receive a non-negative result, be removed from safety-sensitive duties and placed on administrative duties for up to three weeks while the non-negative result was further investigated. The grievor underwent 20 random drug and alcohol tests in the two-year period.
The Arbitration Board’s conclusions
The Board was faced with a range of issues, including identifying a “reasonable balance” between privacy and safety, which are sometimes competing interests. The impact of the alleged privacy breaches experienced by the grievor were weighed against his safety-sensitive duties, involving maintaining high-voltage electrical systems.
Considering the expert evidence, the Board determined that the SAE assessment was flawed and therefore, there was no valid basis for imposing two years of random drug and alcohol testing. The Board further confirmed that “the employer is responsible for the conduct of any third party that performs [a function] for it.”[1] While the Board accepted that it was reasonable for the employer to act based on the information provided to it by the Health Provider, the Board noted that the grievor had “strenuously” objected to the accuracy of the assessment and the employer chose not to seek any further information. The employer argued that it did not have access to more information due to the grievor’s refusal to consent to the employer’s access of his Health Provider file. The Board disagreed with this argument, noting that the employer had the opportunity to request the information through other means given the grievance.
As a result, the Board found that each random drug and alcohol test constituted a highly invasive breach of the grievor’s privacy and awarded CA$12,500 in general damages for same. The Board also awarded loss of income for the grievor’s loss of standby pay and overtime when he wasn’t able to perform safety sensitive duties due to non-negative tests.
Takeaways for employers
Employers have a duty to provide a safe workplace for its employees, but this duty must be balanced with employers’ duty to accommodate employees who are experiencing medical issues that affect their work performance. This decision serves as a reminder that employers should not blindly rely on conclusions of third party health providers. In some circumstances, particularly where the employee strongly disputes the health providers’ conclusions, employers may be expected to seek additional information.
If you have any questions about how to approach the balance between employee privacy rights with employers’ workplace safety obligations, or any other employment and labour issues, please reach out to Cristina Wendel, Jenny Wang, or any member of Dentons’ Employment and Labour group.
We would like to thank our articling student, Sarah Fong, for her assistance in preparing this article.
[1] ATCO Electric Ltd. (ATCO) v Canadian Energy Workers Association (CEWA), 2024 CanLII 127098 (AB GAA) at para 205
