But Ontario Court of Appeal decision leaves door open for non-unionized employers
Attempts by Ontario employers with unionized workplaces to deter alcohol and drug impairment in the workplace with random testing programs may have been foiled by the Ontario Court of Appeal. In a unanimous decision, the court has upheld an arbitrator’s ruling that employers cannot implement random drug and alcohol testing in a unionized workplace without the union’s consent.
Imperial Oil testing program challenged in Entrop
Imperial Oil has promoted alcohol and drug policies as an important component of workplace health and safety programs for many years. In 1992, the petroleum company introduced an alcohol and drug policy that featured testing in circumstances such as: after an incident; where there was reasonable cause to suspect impairment; as part of a rehabilitation program; certification for safety-sensitive positions; and random alcohol and drug testing of employees in safety-sensitive positions.
The policy was challenged under the Ontario Human Rights Code in Entrop v. Imperial Oil Ltd. in 2000. Many aspects of the policy were upheld, including random testing of employees in safety-sensitive positions by using a breathalyzer.
However, the Ontario Court of Appeal agreed with the arbitrator that random drug testing by urinalysis could not measure current impairment, only past drug use. As a result of that “fundamental flaw,” Imperial Oil would not be able to justify random testing, said the court.
New technology detected current impairment
After the Entrop decision, Imperial Oil suspended random drug testing while it investigated other drug-testing technologies. In July 2003, the company adopted an oral fluid (saliva) drug-testing protocol for cannabis only. This testing involves a device placed in the mouth for a few minutes to collect oral fluid on an absorbent pad. The sample is then placed in a preservative solution, sealed and sent to a laboratory for analysis.
In response to the new testing method, the union at Imperial Oil’s Nanticoke refinery filed a grievance in 2003. In a lengthy decision, the Ontario Arbitration Board concluded that, absent clear language in a collective agreement, no unionized employee could be subjected to random alcohol or drug testing, except as part of a rehabilitation program. The board set out one other exception: If it could be established there was an “out-of-control drug culture” at a particular safety-sensitive workplace, it may be possible to institute a random testing program for a period of time to address the problem.
Imperial Oil had not alleged there was an “out of control drug culture” at its Nanticoke refinery. But the union’s agreement to a random testing program can be inferred if it fails to grieve, ruled the board. In a preliminary award, the failure to file a grievance in response to random alcohol testing led to the assumption the parties interpreted the collective agreement as allowing such testing.
It is “beyond any real controversy that the cheek swab test… does accurately detect actual impairment in the subject tested at the time the test is taken,” said the board.
In its May 22, 2009, decision, the Ontario Court of Appeal accepted that proposition as a statement of fact, which would seem to address the “fundamental flaw” in Entrop. Nonetheless, the Court of Appeal upheld the board’s decision to disallow random drug testing.
Given the unwillingness of most unions to agree to any random alcohol or drug testing policy, the 2009 decision in CEP Local 900, subject to any further appeal to the Supreme Court of Canada, effectively thwarts Ontario employers’ efforts to use this tool to promote safety in union workplaces, absent an out-of-control alcohol or drug culture.
Testing easier to justify with oral test
Ontario employers concerned with safety and the effects of drugs and alcohol in the workplace still have options. As noted, the CEP Local 900 decision addresses random drug testing in unionized workplaces in Ontario. Using oral fluid drug testing rather than urinalysis drug testing should cure the fatal flaw noted by the Ontario Court of Appeal in Entrop. It could also make it easier to justify random drug testing of safety-sensitive employees in non-union workplaces as a bona fide occupational requirement.
Other aspects of a complete alcohol and drug program have been upheld by courts for both union and non-union workplaces, including post-incident testing, reasonable cause testing, random testing as part of a rehabilitation program and certification testing for employees entering safety-sensitive positions.
Any alcohol and drug testing policy should be carefully drafted to acknowledge and comply with an employer’s obligations under applicable human rights legislation and directions given by courts in previous cases.
For more information see:
•Entrop v. Imperial Oil Ltd. 2000 CarswellOnt 2525 (Ont. C.A.).
•Imperial Oil Limited v. CEP Local 900, 2009 CarswellOnt 2763 (Ont. C.A.).
Ailsa Wiggins practises employment law at Gowling Lafleur Henderson in Toronto. She can be reached at (416) 369-7260 or [email protected].
