An industrial painter who suffered a twisted ankle on a worksite was improperly subjected to post-incident drug and alcohol testing, according to a recent British Columbia arbitration decision that awarded the worker $2,000 in damages for the violation of his privacy rights.
The arbitrator found that Altrad Services Ltd. failed to properly balance workplace safety concerns with employee privacy rights when it ordered the testing after the worker rolled his ankle while walking on a gravel pathway at an LNG Canada construction project in Kitimat, B.C.
The incident and testing decision
The grievor, a painter with approximately four months of service, was walking to a breakroom on a hot summer day while wearing heavy coveralls when he rolled his ankle on what he described as “loose gravel with potholes.” The injury caused pain and discomfort in his ankle and lower calf.
After reporting the incident, the worker was questioned by the employer’s Health, Safety, Security and Environment Safety Lead and another manager. He remained in the safety trailer for approximately 3.5 hours while management decided whether to require drug and alcohol testing.
The investigation form noted that the “employee did not comply with the mandatory safety program by failing to complete a Safe Task Analysis, resulting in unrecognized hazards and subsequent personal injury.” The worker had not completed a pre-task safety analysis form (STA) before walking to the breakroom.
The acting superintendent initially refused to approve the testing, concluding there were insufficient grounds. However, the project manager ultimately ordered the test, believing the worker’s explanation for falling was “dubious to say the least.”
When questioned during cross-examination about the worker’s privacy interests, the project manager “appeared quite surprised at the notion of privacy rights being a factor at all,” the arbitrator noted.
The worker ultimately submitted to testing, which showed no evidence of impairment.
Significant incident threshold not met
The arbitrator ruled that the employer’s approach was fundamentally flawed because it failed to properly balance privacy rights with workplace safety concerns.
“I find that the employer’s conduct was not informed by the need for this balance. The employer had an ‘obligation to safeguard the grievor’s privacy,’ which it clearly did not consider in any meaningful way,” the arbitrator wrote.
The decision emphasized that twisted ankles are commonplace occurrences and do not meet the “significant incident” threshold required for post-incident testing.
“It cannot be said that an unremarkable accidental twisted ankle met this threshold such that the door should have been opened to potentially invading a worker’s privacy and bodily integrity,” the arbitrator stated.
The arbitrator noted that the injury resulted in “negligible financial cost to the employer and minor health repercussions for the grievor,” describing it as “a routine accidental twisted ankle that most people have experienced, not only in an industrial setting, but walking along a sidewalk or in a public park.”
Investigation deficiencies identified
The decision also highlighted several deficiencies in the employer’s investigation. Despite devoting “a workday for two full-time managers to investigate the matter,” no one visited the site of the incident to examine the environment. The employer also failed to contact eyewitnesses to the incident.
The arbitrator rejected the employer’s reasoning that the worker’s failure to complete a pre-task safety analysis justified the testing. While acknowledging the importance of safety procedures, the arbitrator noted: “This is not a discipline case about a worker failing to complete an STA. It is about post-incident drug and alcohol testing.”
Balancing legal principles
The decision reviews several leading cases on post-incident testing, emphasizing that employers must consider:
- Whether a significant event occurred that could reasonably suggest impairment as a contributing factor
- The reasonableness of requiring testing in the circumstances
- The link between the incident and the employee
- The opportunity for the employee to explain what happened
“For an incident to be ‘significant’ it ‘must be special, remarkable, consequential, important… substantial,'” the arbitrator wrote, citing previous cases. “Significant is not simply the flip side of ‘insignificant’.”
The arbitrator also warned against the “reflexive expression” of when to test: “test unless there are reasons not to,” describing such an approach as “inappropriate.”
Remedy for privacy violation
In awarding $2,000 in damages, the arbitrator noted this was “a sophisticated employer that is well-versed in issues of workplace safety with a long-established post-incident testing policy in place.”
The arbitrator took into account the worker’s embarrassment and discomfort during the testing process, as well as “the employer’s apparent disinterest in worker privacy rights as an exacerbating factor.”
The decision ordered the employer to expunge all documents and records related to the drug and alcohol testing from the worker’s personnel file and other personal records.
The case highlights the continuing tension between workplace safety and employee privacy rights, particularly in safety-sensitive industries. It serves as a reminder that even well-established testing programs must be applied with careful consideration of the specific circumstances of each incident and proper balancing of competing interests.
For more information, see Altrad Services Ltd. v International Union of Painters And Allied Trades, Local 138, 2025 CanLII 31346 (BC LA).
