Imperial’s drug policy salvaged on appeal?

Some testing is a proper job requirement

Ontario’s highest court has partly vindicated Imperial Oil in its attempt to set up a strict workplace policy on alcohol and drug use.

The policy required that all employees in safety-sensitive jobs inform Imperial of their substance abuse, even if the abuse had occurred in the past. In compliance with the policy, Martin Entrop disclosed that he once had a drinking problem, but added that he had not consumed alcohol for seven years.

Because he was in one of the enumerated safety-sensitive jobs, Imperial transferred him into a more junior position.

Before a tribunal of the Ontario Human Rights Commission, Entrop argued successfully that the policy discriminated against him on the basis of a disability.

The tribunal ruled that the disclosure obligation in the policy was too broad, reaching all sorts of problems without any limit going backwards in time.

It also said that the random testing permitted by the policy was unlawful because there was no proof that a positive test showed impairment.

Justice John Laskin, writing for the Ontario Court of Appeal, has ruled that random alcohol testing of employees in safety-sensitive positions is a lawful occupational requirement “provided the sanction for an employee testing positive is tailored to the employee’s circumstances.”

In other words, if Imperial amended the policy so that people such as Entrop — who had overcome his alcohol problem — would not automatically lose their positions, the policy could be legal.

Reducing workplace risk caused by substance abuse is “a legitimate objective rationally connected to work performance,” the court says.

However, it has upheld the tribunal, and a ruling by the Divisional Court, that blood tests for substance use do not by themselves prove an employee is too impaired to perform work safely.

While breathalyzer tests for alcohol use can indicate impairment, Justice Laskin adds, and they are a reasonable requirement for employees in safety-sensitive jobs, automatic dismissal for alcohol use is inconsistent with Imperial’s duty to accommodate employees, including Entrop, who are disabled by alcohol problems.

Justice Laskin also has upheld the findings in the lower tribunals that the policy’s mandatory disclosure, reassignment and reinstatement provisions discriminated against the disabled and were not appropriate occupational requirements. They were not reasonably necessary, Justice Laskin has said, to ensure employees in safety-sensitive jobs were not impaired.

For more information:

Entrop v. Imperial Oil Ltd., Ontario Court of Appeal docket C29762, July 21/00.

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