Random drug tests dealt another blow

Imperial Oil loses fight to use new technology that could tell whether worker was impaired by marijuana

Stuart Rudner
In 2001 the Ontario Court of Appeal released its decision in Entrop v. Imperial Oil Ltd., which has been considered as the leading Canadian jurisprudence on drug and alcohol testing of employees. The case, generally known as the Entrop decision, has been referenced and followed across the country.

Entrop set out the law with respect to when alcohol and drug testing would be permissible. The court considered random testing, post-incident testing and for-cause testing. In assessing the appropriateness of such testing, the Court of Appeal distinguished between alcohol testing and drug testing. Alcohol testing, generally by breathalyser, was recognized as being capable of determining whether an individual was intoxicated.

Conversely, drug testing technology at the time was only capable of assessing whether an individual had drug residue in his system, which would show past usage but not impairment at the time of testing. The court placed significance on this disparity, and allowed alcohol testing in broader circumstances than drug testing. The decision suggested that until the technology behind drug testing progressed to the point where actual impairment could be measured, random drug testing could not be imposed by employers.

As a result, Imperial Oil amended its policy and ceased performing random drug tests. They then set out to find a form of drug testing that could measure impairment, based on their understanding that such a test would be acceptable for random usage in safety-sensitive environments.

New drug-testing technology

Imperial Oil identified technology that would measure actual impairment, due to drug use, at the time of testing. They then sought to reintroduce random drug testing at their Nanticoke refinery, which was recognized as a “highly safety sensitive endeavour.” The only weakness in the new form of testing was that that it did not deliver immediate results, like a breathalyser test does. Rather, one must wait several days for the results.

The company set out its approach in a letter to employees. (For partial text of the letter, see sidebar on page 5). The union grieved the introduction of such testing, alleging it to be a violation of the collective agreement.

The grievance hearing

The company adduced generic evidence of growing marijuana usage and related impairment at work. In response, the union pointed out that there was no record of any bargaining unit employee ever having tested positive for drugs. The board noted there was also no evidence of any significant degree of cannabis use among the workforce at the Nanticoke refinery.

The company’s position was a relatively simple one: the Court of Appeal had ruled against random drug testing because it could not show actual impairment. Now that they had technology that could do so, the company argued such testing should be allowed. The board summarized Imperial Oil’s position as follows:

“As indicated above, the company takes the view that the decision of the Court of Appeal in Entrop effectively trumps the well established arbitral jurisprudence which has consistently struck down random alcohol and drug testing in a safety sensitive workplace. The company reasons that the oral fluid drug test which it now administers is fully analogous to the breathalyser test, to the extent that it can detect impairment. On that basis, it reasons that it conforms to the Court of Appeal’s decision in Entrop and is therefore permissible.”

The ‘Canadian model’ for random drug tests

The board then set out what it understood to be the state of the law, something it called the “Canadian model” for drug and alcohol testing in a safety sensitive workplace:

•No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.

•An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.

•It is within the prerogatives of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.

•Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee’s program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace the union must be involved in the agreement which establishes the terms of a recovering employee’s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.

•The cases generally recognize that an employee’s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer’s drug and alcohol policy and may itself be grounds for serious discipline. The failure or refusal to take an alcohol or drug test, however, like the registering of a positive test, does not necessarily justify automatic termination. The appropriate disciplinary sanction in such a case remains subject to the general just cause provisions of the collective agreement and is an issue to be determined on a case by case basis, having regard to all of the relevant facts.

The board went on to consider whether the proposed drug testing was a violation of the collective agreement. They made a crucial distinction between the case before it and the Entrop decision: they noted that in Entrop, “the focus of the court’s decision was to consider the narrow application of the code to the company’s drug and alcohol policy” whereas the board considered the issue before it to be whether the new drug and alcohol policy contravened the applicable collective agreement.

By making this distinction, the board essentially nullified the argument that the company had complied with the “requirements” of the Entrop decision and that the proposed random drug testing was therefore not a breach of the collective agreement.

“In Canada, arbitrators have overwhelmingly rejected mandatory, random and unannounced drug testing for all employees in a safety-sensitive workplace as being an implied right of management under the terms of a collective agreement,” the board said.

It went on to state that, “secondly, and in our view more importantly, subjecting all employees to random drug testing by means of a buccal swab test simply cannot be reconciled with the well established, predominant Canadian arbitral jurisprudence which holds that, in a safety sensitive working environment, drug and alcohol testing can be required of an individual employee by his or her employer only where there is reasonable and probable cause to do so, or where there has been an accident or incident which would justify such a measure.”

Finally, the board held that the new drug testing was not analogous to breathalyser testing, as it does not provide immediate results. As a result, the board held the proposed testing was a violation of the collective agreement.

What if the technology provided immediate results?

Based on the above, it might be arguable that the missing piece of the puzzle was a drug test that could measure impairment and provide immediate results, like a breathalyser does with alcohol. However, the board cast doubt on this when it went on to say that: “Moreover, while the case is not before us, we have grave doubts as to whether the company could randomly administer drug tests, even if it could be shown that the test would reveal impairment on the spot.”

The board did acknowledge a relatively minor potential exception to their rejection of random drug tests:

“It may well be that the balancing of interests approach, which we favour, would allow for general random, unannounced drug testing in some extreme circumstances. If, for example, an employer could marshal evidence which compellingly demonstrates an out-of-control drug culture taking hold in a safety sensitive workplace, such a measure might well be shown to be necessary for a time to ensure workplace safety. That might well constitute a form of ‘for cause’ justification.”

The general perception of the law, based on Entrop, was that if drug testing could measure actual impairment, as opposed to prior usage, it had a much better chance of being allowed. This most recent decision casts serious doubt on that view, and in fact explicitly suggests that random drug testing might never be accepted by arbitrators unless it was specifically provided for in a collective agreement.

It must be remembered, however, that the thrust of this decision relates to random drug testing. Alcohol testing, and for cause or post-incident testing, remain more widely accepted.

Letter Imperial Oil sent to employees

The company set out its approach on random drug tests in a letter to employees. Below is the partial text from that letter:

Effective July 1, 2003, we will be revising our alcohol and drug (A&D) policy to re-introduce random drug testing for employees in safety-sensitive and other specified positions. While random drug testing under our original policy tested for five drugs of abuse, the new procedure will test only for marijuana at this time.

The policy was first revised in March 2001 to align it with a decision of the Ontario Court of Appeal. The court found that random alcohol testing could be justified for safety-sensitive positions because a positive test demonstrates likely impairment. However, the court expressed concerns about random drug testing primarily because a positive drug test using urinalysis does not demonstrate likely impairment. In light of those concerns, we temporarily suspended the random drug testing component of the policy to allow us to investigate other drug testing technologies that would indicate likely impairment at the time of a positive test.

During the past two years, we engaged experts in workplace drug testing programs to investigate alternatives to random urinalysis drug testing. With their assistance, we determined that oral fluid (or saliva) drug testing for marijuana would address the concern of the Ontario Court of Appeal decision that a workplace drug test indicate likely impairment. Random oral fluid testing will also contribute to the objectives of our A&D policy to reduce the risk of incidents in which drugs are a contributing factor and to deter the use of marijuana where its use may negatively affect work performance and safety.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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