Implementing and administering testing policies

Drug and alcohol testing should be part of broader policy offering solutions

Tim Mitchell
Question: Safety is very important in our workplace and we're looking at implementing testing for intoxication. What are the legal considerations and differences for implementing alcohol and drug testing?

Answer: The answer to the question of what is allowed in terms of drug and alcohol testing has never been clear. However, in light of recent decisions, it may depend not only on the kind of testing but also on where the workplace is.

Testing for substance abuse in the workplace raises a number of concerns. The invasion of employee privacy and the prospect of discrimination on the basis of disability are used as grounds for restricting the reach of policies allowing drug and alcohol testing.

Those advocating testing note the employer’s liability for workplace safety, the increasing incidence of on-the-job impairment — often in the very jobs where inattentiveness can have the most devastating consequences — as well as the risks posed by recreational drug users and the effectiveness of testing as a deterrent.

Arbitrators and courts attempting to reconcile these various interests have put employers in a difficult position when it comes to drafting policies aimed at discouraging impairment in the workplace. Employers must consider different circumstances such as testing prospective employees or existing employees, random testing for all employees or only to those in safety-sensitive positions, for cause or post-incident, on return to duty or as part of a rehabilitation program.

The consequences of a positive test are also a major issue. The historical differences between alcohol tests — capable of revealing current impairment — and drug tests — capable of revealing past use but not current impairment — is narrowing through the development of new procedures, but it is not yet clear how this will affect future case law.

Until recently, the seminal decision on workplace testing was in Entrop v. Imperial Oil Ltd., where the Ontario Court of Appeal held that random drug testing that did not reveal impairment but only past use was discriminatory and inappropriate even for safety-sensitive positions. Entrop did permit random testing for alcohol use for employees occupying safety-sensitive positions under certain conditions.

In 2007, an Alberta arbitration, U.A., Local 488 v. Bantrel Constructors Co., identified the development of two different approaches, with broader drug and alcohol testing programs permitted in Western Canada and the narrow approach exemplified by Entrop continuing to govern in Ontario.

In Chiasson v. Kellogg Brown & Root (Canada) Co., the Alberta Court of Appeal upheld mandatory pre-employment drug testing as a condition of access to a safety-sensitive site. The court pointed out there was a clear connection between the policy as it applied to recreational users of cannabis and its purpose to reduce workplace accidents involving impairment. The court expressed the opinion that extending human rights protections to situations placing the lives of others at risk flew in the face of logic.

Most recently, in Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900, an Ontario court upheld an arbitration striking down random drug testing at a safety-sensitive facility. The board rejected the use of drug testing despite the fact that the method used was a reliable means of detecting current impairment. According to the board, random testing violated the “respect and dignity” provisions of the collective agreement unless the employer could demonstrate an out-of-control drug culture in the workplace.

In adopting testing policies, even in cases where there are legitimate safety concerns, employers must move carefully. Any attempt to institute testing should be preceded by a careful analysis of the need for it in relation to the workplace as a whole, particularly positions that might warrant greater concern and any indications that on-the-job alcohol and drug use is an actual problem.

If testing is implemented, it should be part of a broader, comprehensive substance abuse policy incorporating education, counselling and rehabilitation. It should also provide for accommodation of addicted employees or applicants as required by human rights legislation.

Employees or applicants should be clearly advised of the testing, its purpose, the consequences of a positive test, the consequences of a refusal and the disposition of the test results. The policy should be reviewed regularly to insure ongoing compliance with developing law to identify any problems or inconsistencies in the administration of the policy and to insure that testing technology is the least invasive method possible.

For more information see:

Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).
U.A., Local 488 v. Bantrel Constructors Co., 2007 CarswellAlta 1453 (Alta. Arb. Bd.).
Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 CarswellAlta 1833 (Alta C.A.).
Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900 (M.G. Picher – Dec. 11, 2006).

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.

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