Western Canadian courts more sympathetic to testing by employers with safety concerns; Eastern courts more likely to prohibit it
Test in the West, no-go in Ontario
Testing employees for drug and alcohol abuse has been a thorny issue for several years, as proponents of workplace safety and those of human rights and privacy have clashed over the issue. Legal challenges of employer testing policies have resulted in a variety of decisions that interpret the rights of employers to test for drug and alcohol use differently.
It appears different tolerance levels for testing have developed in Western Canada, where courts have emphasized the safety aspect in allowing testing in certain situations, and Ontario and Quebec, where courts have generally not been satisfied with the legitimacy of testing under any circumstances.
Calgary-based employment lawyer Duncan Marsden provides a view from the West on the various court decisions and what employers might be able to expect in their own region.
Employers, especially those with employees who deal with dangerous equipment, often consider the right to a safe workplace should be the primary consideration when determining the appropriateness of drug and alcohol testing. The types of drug and alcohol testing available for use on employees or job applicants include:
•“For cause” testing, where specific employees who are reasonably suspected of drug or alcohol impairment are tested.
•Post-incident testing, where the employer has a reasonable suspicion drug or alcohol use contributed to the incident.
The law, however, imposes human rights and privacy obligations on employers, which often are in direct conflict with health and safety concerns.
A drug or alcohol addiction is likely to constitute a disability for the purposes of federal and provincial human rights legislation. As such, an employee or applicant who is an addict is entitled to protection from discrimination and the employer must accommodate such an individual, up to the point of undue hardship. Persons with perceived disabilities may also be protected from discrimination.
A review of some important decisions in this area demonstrates the difficulties employers may face if they decide to implement drug and alcohol testing and where an employer is located can affect what might be allowed.
Entrop v. Imperial Oil Ltd.
Imperial Oil’s policy required employees to disclose past drug or alcohol problems. The policy also provided for random substance abuse testing, by way of urine and breathalyzer analysis. The employee disclosed an alcohol problem he had several years previously. He was immediately reassigned to another, less desirable, position and brought a claim which eventually went to the Ontario Court of Appeal.
The court found drug and alcohol abusers had a disability for the purposes of human rights legislation and, although social drinkers and casual drug users were not abusers — and therefore not disabled — it said Imperial Oil’s policy perceived them to be disabled because a drug or alcohol test treated everyone who tested positive as if they were abusers.
According to the Ontario Human Rights Code, pre-employment and random drug testing by an employer was discriminatory on grounds of disability, but the court found random alcohol testing as well as post-incident and “for cause” testing to be permissible for employees in safety sensitive positions, provided the company met its duty to accommodate those who tested positive. Such accommodation should include consideration of sanctions less severe than dismissal, with appropriate support and rehabilitation.
The court differentiated between random drug testing (not permissible) and random alcohol testing (potentially permissible) on the basis that alcohol testing shows a present impairment, whereas drug testing only shows the individual had taken drugs in the few weeks preceding the test but not whether the individual was impaired — and therefore a safety risk — at the time the test was conducted.
Imperial Oil Ltd. v. C.E.P., Local 900
In response to the Entrop decision, Imperial Oil introduced random saliva testing, which purported to indicate present drug impairment, although the test results were not available for a number of days. Again a claim was raised which went to the Ontario Court of Appeal. In a decision released on May 22, 2009, the court again held that pre-employment and random drug testing was impermissible. The court refused to accept Imperial Oil’s new policy, primarily because the delay in results belied the contention that the testing was geared towards immediate safety issues. It found post-incident drug testing and testing with cause was permissible for employees in safety sensitive positions provided the company met its duty to accommodate those who tested positive. The court did not deal with alcohol testing in its judgment.
The approach in Western Canada has focused more on safety concerns.
Chiasson v. Kellogg Brown & Root (Canada) Co.
John Chiasson was hired subject to a pre-employment screening test. He was tested and started work, but when the marijuana-positive results were obtained nine days later, his employment was terminated.
The Alberta Court of Appeal upheld the right of an employer to immediately terminate an employee who failed a pre-employment drug screening test. It ruled that Chiasson was only a recreational drug user and not an addict, and therefore was not disabled and did not require accommodation. It found the employer, Kellogg, did not perceive him to be an addict and its drug testing policy was connected to the important issue of workplace safety. Therefore there was no discrimination. The Supreme Court of Canada denied leave to appeal on May 29, 2008.
The Alberta Court of Appeal observed it was the employer’s concern over the increased likelihood a casual user of marijuana would be impaired on the job, and not a belief about addiction or the behaviour of addicts, that led to the termination of Chiasson’s employment. The court explicitly refused to follow the Ontario Court of Appeal, to the extent that it conflicted with this ruling.
Vancouver Shipyards Co. v. U.A., Local 170
An arbitration board in British Columbia has also gone against the trend in Ontario, ruling that a policy requiring disclosure of substance abuse problems within the previous six years was lawful, in light of evidence that past addicts are more likely to re-abuse drugs and alcohol within six years of recovery. The arbitration board found this policy was safety-focused.
Although the courts in Alberta and B.C. have taken a more employer-friendly approach, the concern of the Ontario courts was the means chosen to address the issue of safety — testing — did not achieve the objective of showing present risk. Breathalyzer tests provide immediate evidence of present impairment and thus demonstrate an employee’s capability to perform job duties safely at the time of the test. A positive drug test, however, does not.
Drugs and alcohol may not be the only risks to safety. Many employers fail to consider sleep deprivation, which can be just as relevant. This has led to the development of technologies which test for impairment, by the use of hand-eye co-ordination tests, for example. Such tests focus on the real issue of a person’s ability to carry out the job in a safe manner rather than focusing on drugs or alcohol as causes of impairment.
These technologies carry their own issues, such as an inability to provide a reason for failing the test — for example, a new parent who has stayed up with her sick baby may be impaired or an employee may fail because of the stress of the test itself. However, with proper administration and individual accommodation, there may be viable alternatives for employers seeking to keep their workplaces safe.
For more information see:
•Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).
•Imperial Oil Ltd. v. C.E.P., Local 900, 2009 CarswellOnt 2763 (Ont. C.A.).
•Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 CarswellAlta 1833 (Alta. C.A.).
•Vancouver Shipyards Co. v. U.A., Local 170, 2006 CarswellBC 3405 (B.C. Arb. Bd.).
Duncan Marsden is an associate in the Calgary office of Borden Ladner Gervais LLP, practicing labour and employment law. He can be reached at (403) 232-9722 or [email protected]