Random testing must have union approval but door still open for non-union employers
Attempts by Ontario employers with unionized workplaces to deter alcohol and drug impairment in the workplace with random testing programs may have been foiled by the Ontario Court of Appeal. The court, in a unanimous decision, has upheld an arbitrator’s ruling that employers cannot implement random drug and alcohol testing in a unionized workplace without collectively bargaining for permission in the collective agreement and obtaining union consent.
Imperial Oil testing program challenged in Entrop
Imperial Oil promoted alcohol and drug policies as an important component of workplace its health and safety programs. In 1992, the petroleum company introduced an alcohol and drug policy that featured testing in circumstances such as after an incident, where there was reasonable cause to suspect impairment, as part of a rehabilitation program, certification for safety-sensitive positions and random alcohol and drug testing of employees in safety-sensitive positions.
The policy was challenged under the Ontario Human Rights Code in Entrop v. Imperial Oil Ltd. Many aspects of the policy were upheld, including random testing of employees in safety-sensitive positions using a breathalyser. However, in 2007, the Ontario Court of Appeal agreed with the arbitrator that random drug testing by urinalysis could not measure current impairment, only past drug use. As a result of that “fundamental flaw,” Imperial Oil would not be able to justify random testing as a bona fide occupational requirement.
New technology detected current impairment
After the Entrop decision, Imperial Oil suspended random drug testing while it investigated other drug testing technologies. In July 2003, the company adopted an oral fluid (saliva) drug testing protocol for cannabis only. This testing involves a device placed in the mouth for a few minutes to collect oral fluid on an absorbent pad. The oral fluid sample is then placed in a preservative solution, sealed and sent to a laboratory for analysis.
In response to the new testing method, the union at Imperial Oil’s Nanticoke refinery filed a grievance. In a lengthy decision, the Ontario Arbitration Board concluded that, absent clear language in a collective agreement, no unionized employee can be subject to random alcohol or drug testing, except as part of a rehabilitation program.
Exception for ‘out of control drug culture’
The board set out one other exception: If it could be established there was an “out of control drug culture” at a particular safety-sensitive workplace, it may be possible to institute a random testing program for a period of time to address the problem. Imperial Oil had not alleged there was an “out of control drug culture” at its Nanticoke refinery. In addition, the board ruled the union’s agreement to a random testing program can be inferred from its failure to grieve. In a preliminary award, the board concluded the failure to file a grievance in response to random alcohol testing led to the assumption the parties interpreted the collective agreement as allowing such testing.
The board also accepted it is “beyond any real controversy, that the cheek swab test… does accurately detect actual impairment in the subject tested at the time the test is taken.” The Ontario Court of Appeal accepted that proposition as a statement of fact, which would seem to address the “fundamental flaw” in Entrop. Nonetheless, the Court of Appeal upheld the board’s decision concluding it was reasonable, the standard of review applicable to labour arbitrators’ decisions.
Given the unwillingness of most unions to agree to any random alcohol or drug testing policy, the recent decision in CEP Local 900, subject to any further appeal to the Supreme Court of Canada, effectively thwarts Ontario employers’ efforts to use this tool to promote safety in union workplaces, absent an out-of-control alcohol or drug culture or union agreement.
New technology makes testing easier to justify for non-union employers
Ontario employers concerned with safety and the effects of drugs and alcohol in the workplace still have options. As noted, the CEP Local 900 decision addresses random drug testing in unionized workplaces in Ontario. Using oral fluid drug testing rather than urinalysis drug testing should cure the fatal flaw noted by the Ontario Court of Appeal in Entrop and make it easier to justify random drug testing of safety-sensitive employees in non-union workplaces as a bona fide occupational requirement. Other aspects of a complete alcohol and drug program have been upheld by courts for both union and non-union workplaces, including post-incident testing, reasonable cause testing, random testing as part of a rehabilitation program and certification testing for employees entering safety-sensitive positions.
Any alcohol and drug testing policy should be carefully drafted to acknowledge and comply with the employer’s obligations under applicable human rights legislation and the directions that have been given by courts in previous cases.
For more information see:
•Imperial Oil Limited v. CEP Local 900, 2009 CarswellOnt 2763 (Ont. C.A.).