An arbitrator has sided with Air Canada in a dispute with a union over conducting a drug test using a hair sample from a flight attendant whose colleagues expressed concern over drug use, behavioural changes, and dark humour about hijacking a plane.
The Canadian Union of Public Employees (CUPE) sought to prohibit the company from conducting hair strand tests on employees and from relying on such test results until a related grievance was resolved via a cease-and-desist order.
Arbitrator William Kaplan dismissed CUPE’s motion.
Background
The dispute arose from a grievance filed by a flight attendant, identified as CB, who was subjected to a hair strand test after being cleared to return to work following a sick leave.
The test was requested based on reports from two of CB’s housemates, who noted behavioral changes and alleged drug use. The reports included concerns about safety due to comments made by CB that referenced hijacking a plane, albeit described as “dark humour.”
Air Canada argued that the hair strand test was necessary due to the time lapse between the reported behavior and the date of the test, as other tests such as saliva or urine would not accurately detect substance use over a longer period.
The company emphasized that this type of testing was rare and only employed under exceptional circumstances to ensure the safety of its employees and passengers.
Unreasonable invasion of privacy: Union
CUPE contended that the hair strand testing was an unreasonable invasion of privacy and was not aligned with the company’s existing policies. The union highlighted that there were pending grievances from 2018 and 2019 regarding Air Canada’s drug and alcohol testing methods, including one specifically addressing hair strand testing.
CUPE maintained that any substance testing outside of duty hours was unwarranted.
Arbitrator Kaplan noted the necessity of balancing safety interests with employee privacy. He concluded that Air Canada had a legitimate safety interest to protect, given the serious nature of the reports from CB’s colleagues.
“The company needed to ensure the grievor was not using proscribed substances before he resumed flight duties where he would be responsible for the safety of passengers and the crew,” Kaplan said. He said that hair strand testing, while intrusive, was justified in this case due to the specific circumstances and the company’s responsibility to maintain a safe working environment.
‘Context matters’
“Context matters,” said Kaplan. “The company received two detailed written reports from two of the grievor’s other co-workers — cabin crew members and housemates — both raising safety concerns. The union describes these reports as vague and unparticularized. A reading of the two reports indicates otherwise.”
Kaplan further remarked that the union’s request for interim relief was not substantiated by evidence of irreparable harm to the grievor.
“The hair strand test will only reveal whether the grievor had, or had not, at the time of the testing, recently used amphetamines, cocaine, opioids, phencyclidine or marijuana. The testing itself was minimally intrusive. The grievor consented,” said Kaplan.
The arbitrator also said the interim relief is reserved for the most clear and compelling cases — ones usually raising the spectre of some irreparable harm, which was “not this case.”
Kaplan also pointed out a “related point” — that there is a company policy at Air Canada prohibiting cabin crew from using illegal drugs and marijuana, except when prescribed as medication.
The Air Canada Alcohol and Drug Policy Glossary of Terms and FAQ provides: “If you are engaged in Safety-Critical Work, you are prohibited from using cannabis (except as prescribed as medication) and illegal drugs at all times, even when not on duty or not in the workplace.”
“As the parties know, cabin crew are required to promptly inform Occupational Health of the use of any medications which may cause impairment and/or impact their ability to perform their duties safely and effectively,” said Kaplan.
He ruled that the hair strand test results will “yield useful information that can now be shared in the usual way and subject to the usual safeguards.”
CUPE’s motion for a cease-and-desist order was dismissed.
Takeaways from this ruling
- Safety vs. Privacy: Employers must carefully balance the need for workplace safety with respecting employees’ privacy rights. In safety-critical roles, this balance often leans towards ensuring safety.
- Clear Communication and Policies: Ensure that drug and alcohol testing policies are clearly communicated and consistently applied. Ambiguities or unexpected changes in policy can lead to disputes and grievances.
- Documented Justification: When implementing non-standard testing methods, employers should document the specific circumstances and safety concerns that justify their use. This documentation can be crucial in defending the decision if challenged.
For more information, see Air Canada v CUPE, Air Canada Component, 2024 CanLII 46083 (CA LA).
