Determining when testing is appropriate
Question: If an employee who operates machinery and other equipment requiring a certain level of skill is involved in a serious accident at work, can the employer order the employee to be tested for drugs and alcohol? If the workplace is unionized and the collective agreement doesn’t address the situation, what can the employer do?
Answer: The first response to this question is another question: does the employer have a policy in place with respect to drug and alcohol testing? If so, and if the policy is reasonable and has been effectively communicated to employees, the employer will likely be able to test.
Even with a policy, however, an employer must be careful not to require a test unless there are reasonable grounds. Fortunately, reasonable grounds can be established as part of the policy. In Imperial Oil Ltd. v. C.E.P., Local 900, for instance, a policy indicated that the occurrence of a serious accident at the workplace (which was a safety-sensitive environment) was reasonable grounds for conducting testing.
An employer must take care to follow its own policy. In Weyerhaeuser Co. v. C.E.P., Local 447, a female employee was taken in the back of a van (which had child-proof locks) to a hotel to provide a urine sample. Four men waited outside the bathroom for her to produce the sample, which was then couriered to an American laboratory (contrary to the policy, which stated that the sample would be sent to a Canadian laboratory). The way in which the testing was conducted was not in keeping with the policy, nor with any respect for the employee’s dignity. Damages against the employer were awarded.
Unionized workplaces can also have policies, even if the collective agreement is silent. Therefore, if the employer of a unionized workplace has a reasonable policy in place which does not otherwise contravene the collective agreement — which does not expressly address the situation —, the employer will likely be able to require the employee to submit to testing following a serious incident.
If there is no policy in place, an employer will have a difficult time requiring a drug or alcohol test, particularly if there are no reasonable grounds to suspect that the employee has ingested a prohibited substance. Employers who attempt to require a test without having a policy in place risk the employee taking action through a labour standards or human rights application, a grievance, or a lawsuit.
As author Clarissa Pearce points out in her 2008 Alberta Law Review article, “Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs,” the jurisprudence surrounding drug and alcohol testing policies has emerged from a large variety of scenarios and is, therefore, largely unsettled. Very recently, the Supreme Court of Canada granted leave to appeal in the case of Irving Pulp & Paper Ltd. v. C.E.P., Local 30. The question in that decision revolved around random alcohol testing (as opposed to testing post-accident). However, some basic principles, such as whether, or to what degree, a workplace must be considered dangerous before testing can be imposed, will hopefully emerge.
Overall, an employer’s best policy is to:
•Have a reasonable policy in place
•Make sure the policy is communicated to all employees and applied fairly and consistently in the workplace.
For more information see:
•Imperial Oil Ltd. v. C.E.P., Local 900, 2006 CarswellOnt 8621 (Ont. Arb. Bd.).
•Weyerhaeuser Co. v. C.E.P., Local 447, 2006 CarswellAlta 1859 (Alta. Arb. Bd.).
•Irving Pulp & Paper Ltd. v. C.E.P., Local 30, 2011 CarswellNB 356 (N.B. C.A.).
