Determining safety sensitive work for drug and alcohol testing

Question: What is the threshold for determining what is a safety sensitive position for the purposes of random drug and alcohol testing?

Answer: Random drug and alcohol testing is not permitted in Canada. With regard to drug and alcohol testing generally, testing is only permitted for employees occupying safety sensitive positions in the following circumstances:

• Pre-employment and pre-placement

• For cause (reasonable suspicion testing)

• After an accident or near miss (post-incident testing)

• Randomly/unannounced only as part of a return to work plan.

Although there is no official threshold for the determination of what constitutes a safety-sensitive position, the leading Canadian case respecting what may constitute a safety sensitive position is Re Canadian National Railway Co. and Canadian Auto Workers. In that case, the arbitrator held that in determining whether an employer may resort to drugs and alcohol testing of its employees, the proper approach is to balance the privacy interests of the employees with the legitimate business and safety concerns of the employer. It followed from this approach that drug testing may be reasonable where an employee is placed in a “safety sensitive” position. On the definition of this term, the arbitrator explained "there are certain industries which by their very nature are so highly safety sensitive as to justify a high degree of caution on the part of an employer without first requiring an extensive history of documented problems of substance abuse in the workplace." However, questions may nonetheless arise with respect to the safety sensitive nature of specific jobs and classifications within a company operating in such an industry.

If the performance of the job by a person impaired by drugs or alcohol risks the safety of the employee, other employees or persons generally, or the safety of property and equipment, the work must be recognized as safety sensitive.

The proper approach is to ask what consequences are risked if the person performing a particular kind of work does so impaired by drugs or alcohol. In other words, the employer must identify the possible risks which can reasonably arise during the performance of the assigned duties of a position. There must be a strong connection between the position’s assigned duties and the possibility of a risk to safety. In answering this question, it is necessary to consider:

• The nature of the employee’s work including an assessment of the tasks performed

• The nature of the equipment the employee operates

• The nature of the material the employee handles.

Examples of jobs which have been considered safety sensitive include those which involve the operation of heavy machinery, equipment, or vehicles, or working in dangerous environments or handling dangerous materials, such as employees of railways, mines, chemical plants and sawmills.

The employer is required to prove objective facts concerning the duties and responsibilities of the position to justify the conclusion that the position concerned is safety sensitive. It is not required that employees perform safety sensitive tasks on a full-time basis before their positions can be classified as safety sensitive. However, the frequency of the performance of safety-sensitive tasks will be a factor to consider.

For example, performing a safety sensitive task two or three times every two weeks may be considered insufficient. On the other hand, where an employee performs a single safety sensitive task on a daily basis, it may be said that her impairment on any given day could affect health or safety.

In relation to the working level employees, lack of supervision in performing their safety-sensitive duties may be relevant but is not determinative. Safety sensitive positions can include supervisors or managers, to the extent that they directly supervise the working level positions, or perform the same duties or exercise the same responsibilities as safety sensitive positions.

Furthermore, safety sensitive positions can also include desk jobs to the extent that they may impact health or safety. Examples of such jobs include traffic co-ordinators and rail traffic controllers. Examples of positions which have been found not to be safety-sensitive include clerical positions such as bank employees.

In defining which positions are safety sensitive, the wording of the employer’s policy is not determinative. In other words, just because your business operates in a highly safety sensitive industry does not necessarily mean you can classify all employees as safety sensitive. Rather, the onus will be on the employer in each instance to demonstrate that the policy should apply to a particular employee by establishing that the employee’s duties are sufficiently safety sensitive to justify the intrusion on her privacy.

For more information see:

• Canadian National Railway v. CAW-Canada, 2000 CarswellNat 2285 (Can. Arb.).