How can employers reduce the risk that employees will show up to work impaired?
The consequences of impaired workers on the job can range from a “mere” loss of productivity to a serious threat to the safety of employees, customers, and the surrounding community.
But what can employers do to prevent it? What can be done to eliminate, or at least reduce, the risk that employees will show up to work impaired?
Since drug and alcohol dependence are considered disabilities under human rights legislation, employers must walk a fine line to avoid breaching the duty not to discriminate against someone with a drug or alcohol dependency.
This is true in hiring, promoting and terminating employees. Business leaders often want to know what can be done without creating a human rights issue. Can they engage in efforts to determine whether employees have substance abuse problems? Or to determine whether employees have used drugs in the past? Or can they only attempt to determine if employees are impaired while on the job? Can workers be forced to take breathalyzer tests? Can employers target specific individuals or groups? Is random testing acceptable? What about testing job applicants to screen out those with drug or alcohol problems? What sanctions are appropriate if someone comes to work impaired? As is often the case, there are no hard and fast rules. However, the case law does provide some guidance.
Discrimination — the legal background
In “the old days,” there was a legal distinction between direct discrimination (“No Blacks or Jews allowed”) and indirect discrimination (a minimum height requirement which indirectly discriminates against groups with lower average heights). Direct discrimination was a clear violation of human rights legislation. Indirect discrimination was prima facie discriminatory, but could be defended on the basis that the requirement was a bona fide occupational requirement.
All of this changed in 1999. That was when the Supreme Court of Canada released its decision in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., known as the “Meiorin” decision. In this case, the Supreme Court rejected the distinction between direct and indirect discrimination, and the different analyses of each type. The court set out a three-part test to be applied to any prima facie discriminatory workplace rule or standard, including the imposition of drug and alcohol testing. The three-part test allows an employer to justify such a rule or standard by establishing:
•that the employer adopted the standard for a purpose rationally connected to the performance of the job;
•that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
•that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
The focus in the first stage is not the particular rule or standard, but its underlying purpose. If there is no relation between the purpose and the job in question, then the analysis ends there and the rule or standard is a violation of human rights legislation.
The second stage looks at the particular standard to determine if the employer had a legitimate reason to believe it was necessary for the job.
The third stage looks at whether the particular standard is indeed reasonably necessary to do the job. Although an employer may genuinely believe its rule is reasonably necessary, a court may find it is not. To satisfy this stage of the test, it must be shown that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
If an employer can satisfy all three stages of the inquiry, then the rule or standard in question will be considered a bona fide occupational requirement. (For more on the Meiorin decision go to www.hrreporter.com, and enter “Meiorin” in the search field.)
Alcohol and drug testing
The Ontario Court of Appeal’s 2000 decision in Entrop v. Imperial Oil remains the leading decision on drug and alcohol testing. Although an Ontario decision, it has been referenced in several other provinces. In fact, the Supreme Court of Canada has confirmed that differences between the wording of human rights legislation in each province should not result in significant differences in the law.
Justice L’Heureux-Dubé wrote that “...mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes.” As such, there should not be significant differences between the provinces with respect to drug and alcohol testing.
In Entrop, the company instituted an alcohol and drug testing policy for employees at its two Ontario oil refineries. Under the policy, employees in positions considered safety-sensitive were subject to random testing for drugs and alcohol. Positive results would lead to automatic dismissal. The policy also included pre-employment testing.
The court confirmed that substance abusers are disabled and entitled to the protection of the Ontario Human Rights Code.
What about casual users who may test positive but not be true abusers or dependents? According to the court, the policy treats them in the same manner. They are therefore perceived as substance abusers and entitled to the code’s protection. Since anyone testing positive would be subject to sanctions, the policy was found to be prima facie discriminatory. The court then engaged in the three part analysis set out in Meiorin.
At stage one, the court accepted that the stated purpose of the policy, to “minimize the risk of impaired performance due to substance abuse” and “to ensure a safe, healthy and productive workplace,” was rationally connected to the performance of work at the refineries. At stage two, the court accepted that the company developed and implemented the policy honestly and in good faith.
The third stage analysis, however, is the meat of the decision. It provides guidance as to what forms of testing and punishment will be acceptable. The court agreed that “freedom from impairment” by alcohol or drugs was a bona fide occupational requirement, and that the company has a right to assess whether its employees are capable of performing duties safely. The court then considered whether the specific provisions in the policy were reasonable.
Random drug testing: The court found that drug testing suffered from a fundamental flaw. Since the presence of a drug may be found in the body well after consumption, it only confirms past drug use, and not current impairment. It therefore cannot demonstrate that an individual is incapable of performing his job duties at the time of testing. This is true for both random testing of current employees and for pre-employment testing of job applicants. As a result, the drug testing policy was found not to be a bona fide occupational requirement. Presumably, the decision may have been different if more appropriate testing was available.
Random alcohol testing: Conversely, the court acknowledged that breathalyzer testing provides a means to test whether an individual is currently impaired by alcohol. The court therefore accepted that subjecting employees in safety-sensitive positions to breathalyzer tests is a reasonable requirement, particularly where supervision is limited or non-existent.
Post-incident or for cause drug and alcohol testing: The policy provided for alcohol and drug testing after a “significant work accident incident or near miss as determined by management” or “where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy.” The court agreed that alcohol testing was appropriate in such circumstances. Furthermore, it agreed that drug testing in this context was permissible if the company could show that it was a necessary facet of a larger assessment of drug abuse.
Penalties for positive testing: The court held that the policy’s sanction for a positive test, being automatic termination, was too severe. A company is required to accommodate individual differences and capabilities to the point of undue hardship. Imperial Oil did not show why it could not tailor the sanctions to accommodate individual circumstances without incurring undue hardship.
The decision in Entrop provides a useful guideline, and has been referred to repeatedly since it was delivered. Subsequent cases with different facts have allowed the courts to expand upon the approach in Entrop; these provide further guidance, and a small selection of them is briefly summarized in “In the courts.”
For more on Entrop and drug and alcohol testing click on “Advanced Search,” select “Employment Law” from the topic menu and “Drug Testing” from the sub-topic menu.
Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP's Toronto office. He can be reached at (416) 595-8672 or [email protected].
In the courts
Federal: Milazzo v. Autocar Connaisseur Inc.
The employee in question was a bus driver. He was tested for drugs, and the presence of cannabis metabolites was detected in his urine. As a result, he was dismissed. The Canadian Human Rights Tribunal, after considering medical and other expert evidence, found that the presence of cannabis metabolites in an employee’s urine assists in identifying drivers who are at an elevated risk of accident. Furthermore, the presence of random testing will serve to deter at least some employees from using drugs or alcohol. As a result, they found that the policy met all three stages of the Meiorin (see page 5) test and was reasonably necessary.
Alberta: Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement
The Court of Queen’s Bench applied the reasoning of the Entrop v. Imperial Oil decision (see main article) and found that an employee who loses her job for refusing to undergo random drug or alcohol testing is also entitled to the protection of human rights legislation, but that the policy in question did not violate such legislation. The court found that the policy was adopted with the intention that Settlement employees, by their sobriety and substantial abstinence from drugs and alcohol, would become role models for the community, which had a significant alcohol and drug problem. Although termination was a harsh penalty for refusing to submit to a random test, an employer could not be expected to offer rehabilitation to an employee who refuses to be tested. As such, the policy passed the three-stage test.
New Brunswick: J.D. Irving Ltd. v. C.E.P. Local 104 & 1309
The New Brunswick Board of Arbitration considered a drug and alcohol policy, implemented by J.D. Irving Ltd., which was not as harsh as that at Imperial Oil. Positive results did not result in automatic dismissal, and random testing only applied to employees in safety-sensitive positions. The board addressed an issue that arises from the wording of the Entrop decision, which suggests that for a job to be considered a safety-sensitive position, there must be little or no direct supervision, and clarified that this is not a requirement. The board rejected the policy requirement that employees in non safety-sensitive positions would be required to submit to post-incident testing. The board also found that although the policy provided that refusal to submit to a test would be grounds for immediate dismissal, the policy cannot override the just cause provisions of the collective agreement.
Ontario guidelines for drug testing
The Ontario Human Rights Commission has published a Policy on Drug and Alcohol Testing, which provides some insight into what companies should and should not do. Given the Supreme Court’s comments that there should not be significant differences between the provinces when it comes to drug and alcohol testing, this policy should be helpful to HR departments in all Canadian jurisdictions. Some of the key points set in the commission’s policy are:
•Drug and alcohol testing should be limited to determining actual impairment of an employee’s ability to perform or fulfil essential duties or requirements of the job. It should not be directed towards simply identifying the presence of drugs or alcohol in the body.
•The policy must not be arbitrary in terms of which groups of employees are subject to testing. To test only new or returning employees but not other employees may not be justifiable. At the same time, testing employees in safety-sensitive positions only may be justifiable.
•Employment-related medical examinations or inquiries, conducted as part of the applicant screening process, are prohibited under the code.
•In the absence of clear medical research, pre-employment alcohol testing does not appear to predict an employee’s ability to perform the essential requirements of a safety-sensitive position. It is therefore difficult to see how an employer could justify pre-employment alcohol testing.
•Medical examinations to determine an individual’s ability to perform the essential duties of a job should only be administered after a conditional offer of employment has been made, preferably in writing.
•Where drug or alcohol testing is a valid requirement on the job, the employer should notify job applicants of the requirement at the time an offer of employment is made. The circumstances under which such testing might be required should be made clear.
•If the applicant or employee requests accommodation to enable him to perform the essential duties of the job, the employer is required to provide individual accommodation unless it is impossible to do so without causing undue hardship.
•The employer will be relieved of the duty to accommodate the individual needs of the alcohol or drug addicted/dependent employee if the employer can show, for example, that: the cost of the accommodation would alter the nature or affect the viability of the enterprise; or notwithstanding accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
Alcohol and drug consumption in Canada
About one in five Canadian workers drinks at some time in the workplace, and less than one per cent report ever using illicit drugs at work, the Canadian Centre on Substance Abuse reports.
Impairment from alcohol and other drugs is a major cause of unemployment and absenteeism, and alcohol impairment causes a significant number of workplace accidents. Substance abuse causes workplace problems due to the impairing effects of alcohol and other drugs, and the lower productivity of chronic or dependent users.
Lower-status workers, young persons and males are most likely to experience a workplace problem due to their use of alcohol or other drugs. Aspects of the work environment such as stress, organizational and co-worker norms, and ready availability will influence levels of alcohol and drug use on the job.
Annual productivity losses in Canada due to substance abuse have been estimated at $4.1 billion for alcohol, $6.8 billion for tobacco and $823.1 million for illicit drugs. Taken together, all forms of substance abuse account for $11.8 billion in productivity losses, representing 1.7 per cent of the gross domestic product or $414 per capita.
Alcohol consumption:
•Sales of alcohol increased from 7.4 litres per person in 1995-96 to 7.6 litres per person in 1996-97, the first increase to occur since the early 1980s.
•2.5 per cent of Canadians reported drinking at levels associated with clinical dependence on alcohol.
•Nearly one in 10 adult Canadians (9.2 per cent) reported having problems with their drinking. The most common problems affect physical health (5.1 per cent) and financial position (4.7 per cent).
Illicit Drugs:
•In 1994, the most commonly reported drugs used on a lifetime and past-year basis were cannabis (23.1 per cent and 7.4 per cent, respectively); LSD, speed or heroin (5.9 per cent and 1.1 per cent); and cocaine (3.8 per cent and 0.7 per cent).
•In 1995, there were 804 deaths (695 men and 108 women) in Canada attributable to illicit drugs. Suicides (329 deaths) and opiate poisoning (160 deaths) accounted for almost two-thirds of all drug-related deaths.
But what can employers do to prevent it? What can be done to eliminate, or at least reduce, the risk that employees will show up to work impaired?
Since drug and alcohol dependence are considered disabilities under human rights legislation, employers must walk a fine line to avoid breaching the duty not to discriminate against someone with a drug or alcohol dependency.
This is true in hiring, promoting and terminating employees. Business leaders often want to know what can be done without creating a human rights issue. Can they engage in efforts to determine whether employees have substance abuse problems? Or to determine whether employees have used drugs in the past? Or can they only attempt to determine if employees are impaired while on the job? Can workers be forced to take breathalyzer tests? Can employers target specific individuals or groups? Is random testing acceptable? What about testing job applicants to screen out those with drug or alcohol problems? What sanctions are appropriate if someone comes to work impaired? As is often the case, there are no hard and fast rules. However, the case law does provide some guidance.
Discrimination — the legal background
In “the old days,” there was a legal distinction between direct discrimination (“No Blacks or Jews allowed”) and indirect discrimination (a minimum height requirement which indirectly discriminates against groups with lower average heights). Direct discrimination was a clear violation of human rights legislation. Indirect discrimination was prima facie discriminatory, but could be defended on the basis that the requirement was a bona fide occupational requirement.
All of this changed in 1999. That was when the Supreme Court of Canada released its decision in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., known as the “Meiorin” decision. In this case, the Supreme Court rejected the distinction between direct and indirect discrimination, and the different analyses of each type. The court set out a three-part test to be applied to any prima facie discriminatory workplace rule or standard, including the imposition of drug and alcohol testing. The three-part test allows an employer to justify such a rule or standard by establishing:
•that the employer adopted the standard for a purpose rationally connected to the performance of the job;
•that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
•that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
The focus in the first stage is not the particular rule or standard, but its underlying purpose. If there is no relation between the purpose and the job in question, then the analysis ends there and the rule or standard is a violation of human rights legislation.
The second stage looks at the particular standard to determine if the employer had a legitimate reason to believe it was necessary for the job.
The third stage looks at whether the particular standard is indeed reasonably necessary to do the job. Although an employer may genuinely believe its rule is reasonably necessary, a court may find it is not. To satisfy this stage of the test, it must be shown that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
If an employer can satisfy all three stages of the inquiry, then the rule or standard in question will be considered a bona fide occupational requirement. (For more on the Meiorin decision go to www.hrreporter.com, and enter “Meiorin” in the search field.)
Alcohol and drug testing
The Ontario Court of Appeal’s 2000 decision in Entrop v. Imperial Oil remains the leading decision on drug and alcohol testing. Although an Ontario decision, it has been referenced in several other provinces. In fact, the Supreme Court of Canada has confirmed that differences between the wording of human rights legislation in each province should not result in significant differences in the law.
Justice L’Heureux-Dubé wrote that “...mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes.” As such, there should not be significant differences between the provinces with respect to drug and alcohol testing.
In Entrop, the company instituted an alcohol and drug testing policy for employees at its two Ontario oil refineries. Under the policy, employees in positions considered safety-sensitive were subject to random testing for drugs and alcohol. Positive results would lead to automatic dismissal. The policy also included pre-employment testing.
The court confirmed that substance abusers are disabled and entitled to the protection of the Ontario Human Rights Code.
What about casual users who may test positive but not be true abusers or dependents? According to the court, the policy treats them in the same manner. They are therefore perceived as substance abusers and entitled to the code’s protection. Since anyone testing positive would be subject to sanctions, the policy was found to be prima facie discriminatory. The court then engaged in the three part analysis set out in Meiorin.
At stage one, the court accepted that the stated purpose of the policy, to “minimize the risk of impaired performance due to substance abuse” and “to ensure a safe, healthy and productive workplace,” was rationally connected to the performance of work at the refineries. At stage two, the court accepted that the company developed and implemented the policy honestly and in good faith.
The third stage analysis, however, is the meat of the decision. It provides guidance as to what forms of testing and punishment will be acceptable. The court agreed that “freedom from impairment” by alcohol or drugs was a bona fide occupational requirement, and that the company has a right to assess whether its employees are capable of performing duties safely. The court then considered whether the specific provisions in the policy were reasonable.
Random drug testing: The court found that drug testing suffered from a fundamental flaw. Since the presence of a drug may be found in the body well after consumption, it only confirms past drug use, and not current impairment. It therefore cannot demonstrate that an individual is incapable of performing his job duties at the time of testing. This is true for both random testing of current employees and for pre-employment testing of job applicants. As a result, the drug testing policy was found not to be a bona fide occupational requirement. Presumably, the decision may have been different if more appropriate testing was available.
Random alcohol testing: Conversely, the court acknowledged that breathalyzer testing provides a means to test whether an individual is currently impaired by alcohol. The court therefore accepted that subjecting employees in safety-sensitive positions to breathalyzer tests is a reasonable requirement, particularly where supervision is limited or non-existent.
Post-incident or for cause drug and alcohol testing: The policy provided for alcohol and drug testing after a “significant work accident incident or near miss as determined by management” or “where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy.” The court agreed that alcohol testing was appropriate in such circumstances. Furthermore, it agreed that drug testing in this context was permissible if the company could show that it was a necessary facet of a larger assessment of drug abuse.
Penalties for positive testing: The court held that the policy’s sanction for a positive test, being automatic termination, was too severe. A company is required to accommodate individual differences and capabilities to the point of undue hardship. Imperial Oil did not show why it could not tailor the sanctions to accommodate individual circumstances without incurring undue hardship.
The decision in Entrop provides a useful guideline, and has been referred to repeatedly since it was delivered. Subsequent cases with different facts have allowed the courts to expand upon the approach in Entrop; these provide further guidance, and a small selection of them is briefly summarized in “In the courts.”
For more on Entrop and drug and alcohol testing click on “Advanced Search,” select “Employment Law” from the topic menu and “Drug Testing” from the sub-topic menu.
Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP's Toronto office. He can be reached at (416) 595-8672 or [email protected].
In the courts
Federal: Milazzo v. Autocar Connaisseur Inc.
The employee in question was a bus driver. He was tested for drugs, and the presence of cannabis metabolites was detected in his urine. As a result, he was dismissed. The Canadian Human Rights Tribunal, after considering medical and other expert evidence, found that the presence of cannabis metabolites in an employee’s urine assists in identifying drivers who are at an elevated risk of accident. Furthermore, the presence of random testing will serve to deter at least some employees from using drugs or alcohol. As a result, they found that the policy met all three stages of the Meiorin (see page 5) test and was reasonably necessary.
Alberta: Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement
The Court of Queen’s Bench applied the reasoning of the Entrop v. Imperial Oil decision (see main article) and found that an employee who loses her job for refusing to undergo random drug or alcohol testing is also entitled to the protection of human rights legislation, but that the policy in question did not violate such legislation. The court found that the policy was adopted with the intention that Settlement employees, by their sobriety and substantial abstinence from drugs and alcohol, would become role models for the community, which had a significant alcohol and drug problem. Although termination was a harsh penalty for refusing to submit to a random test, an employer could not be expected to offer rehabilitation to an employee who refuses to be tested. As such, the policy passed the three-stage test.
New Brunswick: J.D. Irving Ltd. v. C.E.P. Local 104 & 1309
The New Brunswick Board of Arbitration considered a drug and alcohol policy, implemented by J.D. Irving Ltd., which was not as harsh as that at Imperial Oil. Positive results did not result in automatic dismissal, and random testing only applied to employees in safety-sensitive positions. The board addressed an issue that arises from the wording of the Entrop decision, which suggests that for a job to be considered a safety-sensitive position, there must be little or no direct supervision, and clarified that this is not a requirement. The board rejected the policy requirement that employees in non safety-sensitive positions would be required to submit to post-incident testing. The board also found that although the policy provided that refusal to submit to a test would be grounds for immediate dismissal, the policy cannot override the just cause provisions of the collective agreement.
Ontario guidelines for drug testing
The Ontario Human Rights Commission has published a Policy on Drug and Alcohol Testing, which provides some insight into what companies should and should not do. Given the Supreme Court’s comments that there should not be significant differences between the provinces when it comes to drug and alcohol testing, this policy should be helpful to HR departments in all Canadian jurisdictions. Some of the key points set in the commission’s policy are:
•Drug and alcohol testing should be limited to determining actual impairment of an employee’s ability to perform or fulfil essential duties or requirements of the job. It should not be directed towards simply identifying the presence of drugs or alcohol in the body.
•The policy must not be arbitrary in terms of which groups of employees are subject to testing. To test only new or returning employees but not other employees may not be justifiable. At the same time, testing employees in safety-sensitive positions only may be justifiable.
•Employment-related medical examinations or inquiries, conducted as part of the applicant screening process, are prohibited under the code.
•In the absence of clear medical research, pre-employment alcohol testing does not appear to predict an employee’s ability to perform the essential requirements of a safety-sensitive position. It is therefore difficult to see how an employer could justify pre-employment alcohol testing.
•Medical examinations to determine an individual’s ability to perform the essential duties of a job should only be administered after a conditional offer of employment has been made, preferably in writing.
•Where drug or alcohol testing is a valid requirement on the job, the employer should notify job applicants of the requirement at the time an offer of employment is made. The circumstances under which such testing might be required should be made clear.
•If the applicant or employee requests accommodation to enable him to perform the essential duties of the job, the employer is required to provide individual accommodation unless it is impossible to do so without causing undue hardship.
•The employer will be relieved of the duty to accommodate the individual needs of the alcohol or drug addicted/dependent employee if the employer can show, for example, that: the cost of the accommodation would alter the nature or affect the viability of the enterprise; or notwithstanding accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
Alcohol and drug consumption in Canada
About one in five Canadian workers drinks at some time in the workplace, and less than one per cent report ever using illicit drugs at work, the Canadian Centre on Substance Abuse reports.
Impairment from alcohol and other drugs is a major cause of unemployment and absenteeism, and alcohol impairment causes a significant number of workplace accidents. Substance abuse causes workplace problems due to the impairing effects of alcohol and other drugs, and the lower productivity of chronic or dependent users.
Lower-status workers, young persons and males are most likely to experience a workplace problem due to their use of alcohol or other drugs. Aspects of the work environment such as stress, organizational and co-worker norms, and ready availability will influence levels of alcohol and drug use on the job.
Annual productivity losses in Canada due to substance abuse have been estimated at $4.1 billion for alcohol, $6.8 billion for tobacco and $823.1 million for illicit drugs. Taken together, all forms of substance abuse account for $11.8 billion in productivity losses, representing 1.7 per cent of the gross domestic product or $414 per capita.
Alcohol consumption:
•Sales of alcohol increased from 7.4 litres per person in 1995-96 to 7.6 litres per person in 1996-97, the first increase to occur since the early 1980s.
•2.5 per cent of Canadians reported drinking at levels associated with clinical dependence on alcohol.
•Nearly one in 10 adult Canadians (9.2 per cent) reported having problems with their drinking. The most common problems affect physical health (5.1 per cent) and financial position (4.7 per cent).
Illicit Drugs:
•In 1994, the most commonly reported drugs used on a lifetime and past-year basis were cannabis (23.1 per cent and 7.4 per cent, respectively); LSD, speed or heroin (5.9 per cent and 1.1 per cent); and cocaine (3.8 per cent and 0.7 per cent).
•In 1995, there were 804 deaths (695 men and 108 women) in Canada attributable to illicit drugs. Suicides (329 deaths) and opiate poisoning (160 deaths) accounted for almost two-thirds of all drug-related deaths.
