Employee Drug Testing in Safety Sensitive Positions

**Written by Zura Nakiwoga, Articling Student at Lee Workplace Law

In a significant ruling by the Court of King's Bench of Alberta, the case of Quong v. Lafarge Canada Inc., 2024 ABKB 340, highlights the complex intersection of workplace safety, employee rights, and the enforceability of drug and alcohol policies. This case involved the termination of a long-term employee, Garry Frederick Quong, after he refused to comply with his employer's Substance Abuse Program (SAP) following a positive drug test. This article explores the background, legal reasoning, and implications of this case.


Background

Garry Frederick Quong was employed by Lafarge Canada Inc. for over 41 years, ultimately serving as a Site Superintendent. His role was deemed safety-sensitive due to the nature of the work, which involved overseeing construction projects and ensuring site safety.


The Drug and Alcohol Policy

Lafarge's Drug and Alcohol Policy, adopted in 2009, outlined the following key provisions:

1. General Expectations:

  • All employees must comply with the policy to ensure they are fit for duty at all times while at work.
  • Employees must not report to work or continue working if unfit for duty due to the consumption or use of drugs, alcohol, or medications

2. Medically Authorized Cannabis:

  • Employees authorized to use cannabis by a health professional must disclose this to Lafarge. The company will then explore and offer accommodation options if certain requirements are met.

3. Post-Incident Testing:

  • Drug or alcohol testing is required after a workplace incident if:
    • The test is intended to eliminate drug or alcohol use as a possible cause of or a contributing factor to an incident.
    • The employee's explanation of the incident must be considered. If the employee provides a reasonable explanation (e.g., structural or mechanical failure), this is to be weighed against the need for conducting a test.
    • There must be some evidence to indicate that the actions or omissions of the employee contributed to or caused the incident.
    • The incident must involve:
      • Fatality
      • Critical incident
      • Bodily injury to self or others
      • Property damage
      • Environmental damage
      • A near miss or relatively minor incident that could have resulted in any of the above.

4. Testing Thresholds:

  • The thresholds for a positive test were adopted from the Canadian Model for Providing a Safe Workplace by the Construction Owners Association and Energy Safety Canada.

5. Consequences of Positive Tests:

  • Employees must participate in a Substance Abuse Program (SAP) if they test positive. The assessment phase of the SAP determines if the employee has a substance abuse disorder.
  • If allowed to return to work, employees must sign a Last Chance/Return to Work Agreement requiring random drug testing for up to 24 months.


The Incident

  • On the evening of June 2, 2022, Mr. Quong smoked a marijuana joint at home for pain and stress relief.
  • On June 3, 2022, at 10:45 am, he was involved in a minor accident at the worksite, damaging a company vehicle.
  • Following the incident, he was required to undergo drug and alcohol testing, which came back positive for THC.
  • Lafarge placed Mr. Quong on paid leave pending lab confirmation of the test results, which confirmed the presence of THC above the policy threshold.


Termination Process

  • On June 14, 2022, Mr. Quong was informed that he needed to undergo a SAP and sign a Last Chance/Return to Work Agreement for random drug testing over 24 months.
  • Mr. Quong found the requirements unreasonable and refused to participate in the SAP or sign the agreement.
  • Consequently, on June 20, 2022, Lafarge terminated his employment for cause, relying on his violating the drug and alcohol policy and refusing the SAP.


Legal Claims and Defense

Mr. Quong claimed wrongful dismissal, seeking damages equivalent to 24 months' pay. He argued that Lafarge's policy was unreasonable and that the company failed to follow its own progressive discipline procedures. Conversely, Lafarge maintained that its policy was consistent with best practices for safety-sensitive positions and that Mr. Quong's refusal to comply left them no choice but to terminate his employment.


Court's Analysis

Reasonableness of the Drug and Alcohol Policy

Justice Colin C.J. Feasby examined the reasonableness of Lafarge's Drug and Alcohol Policy, considering legal precedents and the specific circumstances of the case. The court noted that employers in safety-sensitive industries have a legitimate interest in preventing impairment at work. Citing Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), [2017] 1 SCR 591, the court reinforced that drug testing policies in such contexts are essential to ensuring workplace safety.

Application of the Policy

The court found that Lafarge's policy was reasonable, well-publicized, and consistently enforced. The policy required testing following a workplace incident to rule out impairment as a contributing factor. Given the potential lingering effects of cannabis, Lafarge's precautionary approach was deemed appropriate.

Just Cause for Termination

The court determined that Mr. Quong's refusal to participate in the SAP and submit to random drug testing during the return-to-work period constituted a repudiation of his employment contract. Justice Feasby emphasized that in safety-sensitive positions, compliance with such policies is crucial for maintaining workplace safety. Consequently, the termination for cause was upheld, and Mr. Quong was not entitled to damages.


Takeaways

For Employees

  1. Understand Company Policies: Familiarize yourself with your employer's drug and alcohol policies, especially if you work in a safety-sensitive position.
  2. Compliance is Crucial: Compliance with post-incident testing and substance abuse programs can be critical to maintaining employment in safety-sensitive roles.
  3. Legal Obligations: Employees have a duty to ensure they are fit for work and to follow workplace safety protocols, including participating in necessary assessments and programs.

For Employers

  1. Clear and Consistent Policies: Ensure drug and alcohol policies are clear, well-publicized, and consistently enforced.
  2. Legal Compliance: Policies should comply with legal standards and best practices for safety-sensitive industries.
  3. Fair Implementation: Implement policies fairly and ensure that employees understand the consequences of non-compliance.


Similar Cases in Ontario

A parallel case in Ontario is Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (CanLII), where the Ontario Superior Court upheld the TTC's random drug and alcohol testing policy for employees in safety-sensitive positions. The court dismissed the Union's challenge, emphasizing the minimal invasiveness of the tests and the significant public safety interest, aligning with the rationale in Quong v. Lafarge Canada Inc.

In contrast, Jacobs Industrial v International Brotherhood of Electrical Workers, Local 353, 2016 CanLII 198 (ON LA) illustrates when a drug test policy was not upheld. Here, a minor vehicle incident was deemed insufficient to justify a drug test, underscoring the need for contextual analysis in policy enforcement.

These Ontario cases underscore the importance of clear, consistently enforced, and minimally invasive policies in safety-sensitive roles to balance workplace safety with individual rights.


Conclusion

The ruling in Quong v. Lafarge Canada Inc. underscores the importance of adhering to drug and alcohol policies in safety-sensitive industries. Employers must ensure their policies are reasonable, well-communicated, and consistently applied. Employees, particularly in safety-sensitive roles, have a duty to comply with such policies to maintain a safe working environment.