On April 13, the government of Canada introduced Bill C-45, the Cannabis Act, which, once passed, will remove from the country’s Criminal Code incidental marijuana consumption and possession. Expected to become law by July 1, 2018, the act will also regulate marijuana production, distribution and retail sale.
The legalization of marijuana has heightened employer concerns that employees will come to work impaired. Now, more than ever, employers are asking, “When and how can an employer test for drugs and alcohol in the workplace?”
The answer: While testing may still be rare, scientific advances, driven largely by law enforcement seeking effective ways to roadside test for drug-related impairment, have meant some of the more compelling historical and technological barriers to drug testing are (or will soon be) a thing of the past.
Traditionally, drug and alcohol testing in Canadian workplaces has been permitted sparingly as courts and arbitrators tried to balance the competing interests of privacy, human rights and safety. Testing has been allowed where the position at issue is considered safety-sensitive and:
• the employer has reasonable cause to believe the employee is impaired at work
• the employee has been involved in a significant workplace incident or “near miss”
• it is a component of a return-to-work arrangement following an employee’s treatment for drug or alcohol addiction.
Pre-employment testing has been considered impermissible because a failed test does not mean a candidate will attend work impaired, only that she has used alcohol or a controlled substance in the past — and screening on this basis alone could violate human rights legislation.
Random testing was considered impermissible as an unnecessary and unjustified infringement on an individual’s privacy rights. Drug testing (as opposed to alcohol testing), in particular, has been criticized because traditional methods were seen as intrusive (such as a blood test) and could not determine current, or level of, impairment.
In 2013, the Supreme Court of Canada gave employers some leeway. In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, the court confirmed an employer may conduct random alcohol testing for a safety-sensitive position if it can establish it operates a dangerous workplace and there is a general workplace problem with alcohol abuse.
Fast-forward to 2017 and the law has begun to catch up with technology.
TTC takes a stand
In October 2010, the Toronto Transit Commission (TTC) implemented a “Fitness for Duty Policy” designed to “ensure the health and safety of employees and the safety of customers and members of the public.” The policy provides for drug and alcohol testing of employees in safety-sensitive and specified management/executive positions, under the following circumstances:
• Where there is reasonable cause to believe drug or alcohol use resulted in an employee being unfit for duty.
• As part of an investigation into a significant work-related incident or accident.
• In the context of a return-to-work plan following treatment or after a violation of the policy.
• As a final condition of employment in safety-sensitive positions.
The union for TTC employees alleged the policy was contrary to the collective agreement and Human Rights Code of Ontario. A grievance was brought to arbitration (which is still ongoing).
In October 2011, in response to a culture of drug and alcohol use at some of its locations, the TTC announced its intention to expand the policy to include random drug and alcohol testing of employees in safety-sensitive and specified management/executive positions.
The union brought a motion for an interlocutory injunction preventing the TTC from implementing the program pending a final determination of the issue through the arbitration. The party requesting the injunction must demonstrate three things:
• There is a serious issue to be tried.
• If the injunction is not granted, the party (in this case, the union) will incur irreparable harm that cannot be compensated in monetary damages.
• The balance of convenience favours granting the relief, taking into account the public interest.
In refusing the injunction, the court responded to the three issues as follows:
• Yes, there is a serious issue to be tried.
• No, the union will not suffer irreparable harm if the injunction is not granted. If the policy, or its random component, is found to contravene the collective agreement or Human Rights Code, the law of Ontario provides for the payment of monetary damages to those employees who have been wronged.
• No, the balance of convenience does not favour granting the injunction. If random testing proceeds, it will increase the likelihood an employee in a safety-
sensitive position, prone to using drugs or alcohol, too close in time to coming to work, will either be detected or deterred by the prospect of being detected. This will enhance public safety.
The court commented favourably on aspects of the policy designed to address historic concerns with testing, including methods, the impact on privacy and human rights, and the stigma of being selected. The court also accepted scientific evidence advanced by the TTC to support and underscore the necessity and reasonableness of random testing. Specifically:
• There is a culture of drug and alcohol use at the TTC. This is factually different from Irving Pulp and Paper in which the arbitration board concluded the employer exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem.
• It is very likely a worker with a substance use disorder will report to work in an impaired condition.
• Many cases of drug and alcohol-related activity among TTC employees at work go undetected and unverified due to difficulties in detecting drug and alcohol misconduct.
• Between 2010 and 2016, about 2.4 per cent of external applicants — who knew they would be tested for drugs — nevertheless returned a positive test.
• Statistically, random workplace testing results in a significant decline in the rate of positive drug tests of employees.
• An external candidate interested in working for the TTC in a safety-sensitive position must pass a pre-employment urinalysis test for drug use. Hence, the idea of ongoing testing should be a reasonable expectation.
• The TTC distributed comprehensive information to all workers about the policy and intention to implement random testing.
Minimal intrusion into privacy
• A breathalyzer measures a person’s breath alcohol level at the time of the test; it is not invasive and does not reveal other personal information.
• A positive test result would be followed by a review with a medical review officer who would discuss the results with the employee to determine if there was a legitimate, medical explanation. If so, the officer would have the discretion to report the test as negative.
• General stigma and psychological and reputational damage, as a result of being tested, is unlikely given that 20 per cent of employees would be randomly tested each year.
Reliability of results
• Threshold levels for a positive test would be higher than in other internationally recognized programs, ensuring a greater likelihood of impairment at the time of testing based on recent drug use, and minimizing intrusion into an employee’s life choices by screening out results that detect previous drug use unlikely to amount to impairment at the time.
• Oral fluid testing gives a better indication of recent use and likely impairment than urinalysis.
• There’s less chance of a false-positive due to second-hand smoke.
By denying the injunction, the court permitted the TTC to implement random testing pending the outcome of the arbitration and, so far, it would appear the court got it right; of the first group of employees randomly tested, two of eight failed the test.
What does this mean for employers?
The court’s decision did not determine the permissibility of the TTC’s testing protocol; this will be decided in the arbitration. However, it does provide insight into the analysis a court may undertake when assessing a testing program.
An effective and defensible policy must be tailored to the workplace and appropriately address important factual and legal considerations. At a minimum, an employer should consult with counsel and consider the following:
• Are there sufficient factual grounds to implement a testing policy, such as a culture of drug or alcohol use among workers engaged in safety-sensitive work?
• Is the policy broad enough to capture impairment not only from the use of illegal drugs, but also prescription and legal recreational drugs?
• Does the policy appropriately address safety, privacy and human rights issues?
• Does the policy clearly outline how testing will be undertaken?
• Does the policy identify consequences in the event of a breach (meaning discipline and termination), including failure to participate in testing?
Shana French and Brian Wasyliw are lawyers at Sherrard Kuzz LLP, one of Canada’s leading employment and labour law firms, representing management. They can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com.
Case law on testing
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.). Irving’s random testing policy was struck down by an arbitration board as a significant encroachment into employee privacy that was “out of proportion to any benefit.” The company’s alcohol-related incidents were insufficient to demonstrate a “problem in the workplace.” That decision was overturned, but the Supreme Court of Canada later found random testing to be unreasonable: “The expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe.”
Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 CarswellOnt 1824 (Ont. Arb.). The employer had a drug and alcohol policy that allowed employees who tested positive for drugs or alcohol to return to work with random followup testing. Employees who refused a test were also subject to the followup testing. The arbitrator found that while a refusal wasn’t the same as a positive test, the employer would have no other way of knowing if someone was a recreational user or addict. However, the policy’s description of the testing process was vague. While the concept was reasonable, the wording should be amended to talk about individualized assessments.
Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.). The arbitration board found Suncor had failed to show an existing problem in the bargaining unit that justified the intrusive nature of random testing. The court disagreed, finding the Irving test only required evidence of a general “workplace” problem with drugs and alcohol. The court held that workplace safety is an aggregate concept, particularly in dangerous environments. A broader focus on the overall problem, as opposed to a narrow focus on the bargaining unit, was consistent with an employer’s obligation to ensure the safety of its entire workplace.
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