Trucking company inappropriately disclosed employee’s drug test results to workers’ compensation board

PIPEDA Case Summary #2016-009

March 10, 2016

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Complaint

An individual alleged that while his claim file was active with a provincial workers’ compensation board (“WCB”) following an accident he had at work, his employer informed the WCB, without his knowledge and consent, that he had recently tested positive in a drug test. The individual also alleged that his employer had informed his co-workers of his positive test result without his knowledge or consent.

Summary of Investigation

Following a workplace injury, the individual took medical leave and applied for workers’ compensation benefits. The WCB agreed with the employer, an international trucking company, to place the individual on a modified duties work plan. A few days before he was to return to work, the individual was informed that he was required to submit to a random drug test. When the results came back positive for drug use, he was formally suspended from work.

The individual later discovered that his employer had disclosed his drug test results to a WCB adjudicator. Further, the individual claimed that he spoke to two colleagues who knew about his drug test results. The individual contacted the employer with these concerns but was not satisfied with its response, and filed a complaint with our Office.

During our investigation, the employer stated that, as a licensed commercial motor carrier in the United States, it was required by the United States Department of Transport’s Code of Federal Regulations Title 49, Part 382 to implement a random drug and alcohol testing program for those employees engaged in a “safety sensitive function.”  All employees who are on call and could be dispatched to the United States are required to participate in the program. According to the company, the complainant had recently driven to the United States and was therefore required to take the test.

Regarding the disclosure of the results to the WCB, the company stated that a manager handling compensation claims sincerely believed that he was obliged to inform the WCB about the results, to explain the reason for the complainant’s employment status change. In support of its disclosure, the company pointed to a provision of the provincial Workers’ Compensation Act (“WCA”), which states that employers must provide the WCB with any information it requires in connection with an accident.

The WCB adjudicator confirmed that she had been informed about the drug results by the company manager. As the complainant had been suspended from his regular job, the manager was apparently seeking advice regarding suitable modified duties for him. When asked whether an employer would have a legal obligation under the WCA to disclose the personal information at issue, the WCB stated to our Office that the WCA  creates no express duty for any party to make an unsolicited disclosure of information to the WCB, except in certain limited circumstances related to notification requirements after a workplace accident.

On the alleged disclosure of the complainant’s drug results to other employees, our Office contacted both co-workers the complainant identified. They stated they were aware that the complainant was required to take a drug test as the list of individuals to be tested was publicly posted on a workplace bulletin board. When the complainant stopped coming to work shortly after taking the test, they had assumed it was due to the test outcome. For its part, the company stated that it could find no evidence of a disclosure of test results to co-workers, and that the complainant’s results were placed in his personnel file, to which only a limited number of people have access.

Outcome

We found that the individual’s drug test results constitute personal information that had been collected for one particular purpose: to fulfill the company’s substance abuse policy requirement. However, the information was later used and disclosed for another purpose ─ the WCB claim and return to work process ─ to which the complainant had not consented.

Our Office further determined that the disclosure of the complainant’s drug test results to the WCB was not required by law since, as confirmed by WCB, the drug test results was not information that the WCB had required the organization to provide in accordance with the WCA. Therefore, the exception to consent under paragraph 7(3)(i) of PIPEDA could not be relied on in this case. Accordingly, we found the organization contravened Principles 4.3 and 4.5 in respect of this disclosure.

We made several recommendations to the company. First, our Office recommended that it cease displaying the list of personnel selected for drug testing in the workplace. Secondly, our Office recommended that it revise its substance abuse policy to better describe: (i) the company’s obligations regarding a drug testing program; (ii) when the company may report testing results to third parties and the need for employee consent to do so; and, (iii) how the company reports the results. Thirdly, it was also recommended that the company provide a copy of its revised substance abuse policy to its employees prior to any drug testing they undergo.  Finally, it was recommended that the company provide a privacy training session to its employees, including management.

After the company demonstrated to our Office that it had implemented all of our recommendations, we found that the individual’s complaint regarding the disclosure of his drug test results was well-founded and resolved.

Regarding the second aspect of the complaint, our Office did not find any evidence that the drug tests results were disclosed to the complainant’s co-workers. Thus, we concluded that this aspect of the complaint was not well-founded.