Upcoming Supreme Court rulings will define landscape
There is always a balancing act or tension between an employer’s interests in protecting its operations and employees from the employee who is impaired on the job, and the employer’s obligation to respect its employees’ human rights, privacy and dignity.
Safety in the workplace may be jeopardized by employees working under the influence of alcohol, illicit drugs, prescription or over-the-counter drugs.
While an employer may resort to the implementation of an alcohol and drug policy in an attempt to manage this problem, there are various legal considerations to take into account before doing so.
Random drug and alcohol testing in the workplace constitutes discrimination under Canadian human rights law. Disability, as a prohibited ground of discrimination, includes perceived and actual substance dependence. An employee testing positive and discriminated against under an employer’s policy is entitled to the protection of human rights legislation.
In Entrop v. Imperial Oil Ltd., a leading case on alcohol and drug testing in safety-sensitive positions, the Court of Appeal of Ontario tried to explain the balancing act and concluded the following:
•The provisions of the company’s policy on random alcohol testing, though possibly considered discriminatory, could be justified as reasonably necessary provided the sanctions for an employee testing positive were tailored to his circumstances;
•Alcohol and/or drug testing could be justified after a significant work incident and provided there was reasonable cause to suspect alcohol or drug use;
•The provisions for mandatory disclosure of current or past substance abuse or dependence and reassignment as a result of disclosure were not justified;
•The provisions for post-reinstatement testing were not justified (contrast with Imperial Oil Ltd. and CEP, Local 777 (Parsons), where a board of arbitrators upheld the dismissal for cause of an employee who tested positive for marijuana following his return to work);
• Although the court did not decide the issue, it noted that the provisions on random or pre-employment drug testing were problematic, in part because a positive drug test using urinalysis did not demonstrate impairment on the job (unlike a positive breathalyzer reading).
Several cases involving alcohol and drug testing have been decided since Entrop.
More recently, two cases have refuelled the controversy around such testing. CEP v. Suncor Energy Inc. involves a grievance filed last year by the union over Suncor’s plans to implement random drug and alcohol testing of oil sands employeees in safety-sensitive positions.
The union sought an injunction preventing implementation of the policy pending the arbitral decision on whether the testing was reasonable.
In granting the injunction, the Court of Queen’s Bench of Alberta noted “there can be no doubt that the safety of individuals at a workplace is of paramount importance for Suncor and is something the court must consider in determining the appropriate relief… courts have often said, however, that the importance of workplace safety must also be tempered with a consideration for the privacy, bodily integrity and dignity of employees, and particularly, employees innocent of any wrongdoing.”
The Court of Appeal dismissed Suncor’s appeal of the decision to grant the injunction. The majority found that “the non-consensual taking of bodily fluids is a substantial affront to an individual’s privacy rights.”
In contrast, the minority was of the view that “very full detailed and overwhelming evidence here shows the dangers of accidents, and of the danger of drinking or drugs among workers. Privately giving a urine sample to be tested for alcohol or drugs does not begin to equal death or dismemberment, or widowhood or becoming orphaned, by an accident.”
In December of 2012, the Supreme Court of Canada heard an appeal from the New Brunswick Court of Appeal in the case of CEP, Local 30 v. Irving Pulp and Paper Limited.
An arbitration board concluded the company had not shown the mill's operation posed a risk of harm that outweighed an employee’s right to privacy and had not adduced sufficient evidence of alcohol-related impairment on the job to justify the mandatory random alcohol testing.
On judicial review, the lower Court held it was unreasonable to require evidence of a history of alcohol abuse in the workplace once the board had concluded it was a dangerous workplace.
The Court of Appeal upheld the conclusion that random alcohol testing was reasonable.
It will be interesting to see the implications for random drug and alcohol testing in safety-sensitive positions of the upcoming arbitral and Supreme Court decisions.
Danielle Leon Foun Lin is an Associate in the Labour and Employment Law Groups of Nelligan O’Brien Payne LLP in Ottawa. She can be reached at 613-231-8369 or at Danielle.[email protected].
