Drug and alcohol testing of employees has been a hot-button issue with courts swinging back and forth on its admissibility
To test or not to test
Having a drug and alcohol testing policy in place seems like a logical and safe practice for employers, but it has raised issues of human rights, privacy and whether the tests really prove anything. Employers’ policies have been challenged across Canada with differing results depending on the jurisdiction. This has made things confusing for employers.
Health and safety, addiction as a disability, identifying impairment, random versus incident-based testing: All these are issues employers must contend with when considering implementation of a testing policy. And the variance in court decisions on these issues show there is no uniform approach across the country. Janice Rubin and Sharaf Sultan of Rubin Thomlinson LLP wade through the confusion to give employers an idea of what they can do in the area of workplace drug and alcohol testing.
An American employer recently called wanting to know what the current state of the law was in Canada regarding drug and alcohol testing. This employer wanted to commence random tests of its employees in Canada, as it had relied on them for many years in the United States.
What could we tell this employer? It is clear from a handful of cases from the past few years there is no uniform approach across the country. Whether a drug testing policy can be rationalized depends on where it is in Canada and the purpose of the policy itself.
Random testing ruled discriminatory
In 2000, the Ontario Court of Appeal in Entrop v. Imperial Oil Ltd. found random universal drug and alcohol testing of employees to be discriminatory because the drug test did not reflect actual or future job impairment. The court pointed to a lack of evidence with regard to both the relationship between drug use and job performance and the effectiveness of drug testing on detecting impairment. It did, however, allow testing that could detect current impairment for safety-sensitive positions.
More recently, however, the Quebec Court of Appeal in Section locale 143 du Syndicat canadien des communications, de l'énergie et du papier c. Goodyear Canada Inc. struck down an employer’s policy of random drug and alcohol testing for safety-sensitive positions, ruling it would unduly interfere with the privacy rights of employees and violate Quebec’s Charter of Human Rights and Freedoms. The court said there was no evidence random tests were essential to ensure the health, safety or physical integrity of employees.
More leeway for testing in safety-sensitive workplaces
Western Canadian case law has reflected more tolerance for drug and alcohol testing. In Chiasson v. Kellogg Brown & Root (Canada) Co., a construction company terminated a new employee who failed a mandatory pre-employment drug test. The Alberta Court of Appeal upheld the employer’s policy on the belief such testing legitimately “perceives that persons who use drugs at all are a safety risk in an already dangerous workplace.” The court also pointed to evidence the effects of marijuana can linger for several days.
Notwithstanding the Quebec decision in Goodyear, an employer has more latitude if random drug and alcohol testing relates to safety sensitive positions. In Milazzo v. Autocar Connaisseur Inc., a Quebec bus driver was terminated following a positive result in a random drug test. The Canadian Human Rights Tribunal held random drug testing of bus drivers was a “legitimate way to promote road safety.” It found the policy was reasonable and necessary given the safety concerns involved.
In U.A., Local 488 v. Bantrel Constructors Co., the Alberta Court of Queen’s Bench upheld a testing policy even though it could not reflect present impairment. The employer required that employees be tested for drugs and alcohol before gaining access to a dangerous worksite and the court pointed to several factors — including a failed test that did not lead to automatic termination, the unreliability of alternative methods, fair warnings given to employees and the seriousness of the safety issues involved.
Policies must have clear and legitimate purpose
To pass legal scrutiny, employer policies related to drug and alcohol testing must have a clear and legitimate purpose. In Alberta (Human Rights and Citizenship Commission) v. Elizabeth Métis Settlement, two employees were terminated for refusing to be tested in accordance with an employer policy, which the employer said was key to maintaining a clean image. The Alberta Court of Appeal disagreed with the employer’s reasoning and refused to uphold the terminations because the policy did not refer to the objective of promoting a good image.
Drug and alcohol testing policies must also be conducted in a reasonable manner. In Weyerhaeuser Co. v. C.E.P., Local 447, the employer subjected an employee to humiliating conditions during testing. The arbitrator found the policy led to “unacceptable invasions of an employee’s rights where their refusal to test is based not on hiding their own drug use but on the employer’s own unreasonable conduct.” Employers must be mindful to ensure policies are designed and carried out in a sensitive manner.
Courts have also indicated a termination unrelated to disability cannot be challenged on the basis of discrimination. The Ontario Divisional Court in Chornyj v. Weyerhaeuser Co., refused to entertain a claim of discrimination where a job offer was withdrawn because of a positive test from recreational drug use. The job candidate claimed the employer policy discriminated against him on the basis of a disability but the court found, since the candidate was a recreational drug user, there was no basis for a claim of discrimination. The court ultimately found the policy and withdrawal of the offer was related to dishonesty and not disability.
Even where drug and alcohol testing policies are found to be discriminatory, they may be allowed if an employer can demonstrate a sufficient need for the policy. In British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., the Supreme Court of Canada described the bona fide occupational requirement test. This allows an employer to avoid a charge of discrimination in the implementation of a workplace policy by demonstrating it is the least discriminatory manner in which to achieve a legitimate work purpose, such as safety, to the point of undue hardship.
Tips for employers
It is not easy to figure out the status of drug and alcohol testing in Canada given the different approaches taken by decision-makers, but employers would be wise to heed the following:
•Broad-based or universal testing may be discriminatory. If an employer simply wanted to test everyone — from IT specialists to heavy equipment operators — on a random basis, it would likely be unlawful, especially in Ontario.
•If the employer could show the testing policy was a bona fide occupational requirement of the job, particularly in a safety-sensitive position, it might have better luck defending the policy.
•The employer needs to be mindful on how it administers the policy. It should interfere with employee privacy rights as little as possible and be administered in a respectful and dignified way.
For more information see:
•Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).
•Section locale 143 du Syndicat canadien des communications, de l'énergie et du papier c. Goodyear Canada Inc., 2007 QCCA 1686 (Que. C.A.).
•Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 CarswellAlta 1833 (Alta. C.A.).
•Milazzo v. Autocar Connaisseur Inc., 2003 CarswellNat 4798 (Can. Human Rights Trib.).
•U.A., Local 488 v. Bantrel Constructors Co., 2007 CarswellAlta 1621 (Alta. Q.B.).
•Alberta (Human Rights & Citizenship Commission) v. Elizabeth Métis Settlement, 2005 CarswellAlta 685 (Alta. C.A.).
•Weyerhaeuser Co. v. C.E.P., Local 447, 2006 CarswellAlta 1859 (Alta. Arb. Bd.).
•Chornyj v. Weyerhaeuser Co., 2007 CarswellOnt 983 (Ont. S.C.J. (Div. Ct.)).
•British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907 (S.C.C.).
Janice Rubin is a founding partner of Rubin Thomlinson LLP, a Toronto employment law firm. She can be reached at (416) 847-1814 ext. 109 or [email protected]
Sharaf Sultan is an associate at Rubin Thomlinson LLP. He can be reached at (416) 847-1814 ext. 111 or [email protected]