Employee Privacy Interests and Drug Testing – Your Home, Your Rights!

It has been long upheld that an employee’s home is their safe space. This principal was recently explored in the case of ATCO Electric Ltd. (ATCO) v Canadian Energy Workers Association (CEWA), 2024 CanLII 37038, wherein arbitrator James Casey emphasized that employers are not immune to this principle.

Incident and Initial Response

Employers may have policies requiring drug and alcohol testing following workplace incidents. In this case, an employee, Mr. Sean Mowat, was struck in his lower leg at work. ATCO, the employer (and defendant), upon notice of Mr. Mowat’s injury, determined as per their Alcohol and Drug Standard for Employees from the collective agreement, both Mr. Mowat and his coworker were required to attend a third-party testing site for drugs and alcohol.

Conflict at Hospital Discharge

In the case in question, upon Mr. Mowat departing from the hospital, there was a disagreement between an ATCO supervisor, who wanted to take Mr. Mowat to the drug testing facility, and Mr. Mowat’s family and friends who wanted to take him home. Reluctantly, the ATCO supervisor stopped insisting Mr. Mowat needed to attend the drug testing facility, and Mr. Mowat’s wife drove him home. Employers should consider an employee’s medical condition when implementing testing policies.

Home Visit and Policy Enforcement

Entering an employee’s home without consent can be a privacy violation. Employers should have clear, safe plans for implementing testing policies. In the case of ATCO Electric Ltd. (ATCO) v Canadian Energy Workers Association (CEWA), 2024 CanLII 37038, when Mr. Mowat arrived at home, another ATCO supervisor arrived and gave him the pamphlet explaining the drug and alcohol testing policy consisting of a general message that a refusal to test could result in disciplinary action up to and including termination.

Mr. Mowat made it clear that he was not refusing to be tested. Mr. Mowat continued to be in extreme pain and was scheduled for urgent surgery the next day, but the representative of ATCO continued to remain in their home insisting that Mr. Mowat still needed to go for testing without a plan on how to achieve testing safely.

Union Grievance

Unions play a crucial role in protecting employee rights and challenging potentially unreasonable employer actions. As a result of the interactions in Mr. Mowat’s case, the union brought a grievance on his behalf alleging ATCO breached his privacy rights by entering his home without consent, failed to comply with its safety obligations by insisting that he go for testing, and failed to exercise its management rights in a reasonable way in administering the testing regime. Arbitrator James Casey agreed, finding that ATCO failed to respect Mr. Mowat’s privacy rights. ATCO breached its safety obligations and exercised its management rights in the administration of the Drug and Alcohol testing policy unreasonably.

Key takeaways:

There is a fine line between what an employer can do and what an employer should do. While employers have an obligation to uphold their policies, employers must follow their policies in a reasonable way – ones that do not breach an employee’s legitimate privacy interests.    

1. Employers must balance respecting employee privacy rights with workplace safety interests.
2. Company policies should be applied reasonably.
3. Informed consent is required when entering an employee’s home and the consent should outline the employer’s central objectives for entering.
4. Employee information collection must be reasonable, respectful, and conducted in a manner that doesn’t infringe on privacy rights
5. Failure to adhere to these principles may result in privacy rights violations.

If you have questions about any of the topics discussed in this post, please contact Jaeda Lee or any other member of our Privacy and Data Protection group.