Drug and Alcohol Testing

Arbitrators in unionized environments have consistently held that random drug testing is an unwarranted violation of the employee's privacy rights and therefore unlawful. Similarly, pre-employment drug and alcohol testing has also been consistently held to be unlawful.

By contrast, drug testing based upon a reasonable and probable suspicion of impairment, or following a workplace accident or "near miss", may be upheld.

The Ontario Court of Appeal in the decision of Entrop et al. v. Imperial Oil Limited et al. (2000), 50 O.R. (3d) 18 sets out the general rule, and its basis, as follows:

The [employer] has the right to assess whether its employees are capable of performing their essential duties safely. Therefore, "freedom from impairment" by alcohol or drugs is a bona fide occupational requirement. An employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job. However random drug testing for employees in safety-sensitive positions cannot be justified as reasonably necessary to accomplish the [employer's] legitimate goal of a safe workplace free of impairment. Drug testing suffers from the fundamental flaw that it cannot measure present impairment. A positive drug test shows only past drug use. It does not demonstrate that a person is incapable of performing the essential duties of the position. Moreover, drug testing programs have not been shown to be effective in reducing drug use, work accidents or work performance problems.

An employer who discovers that an employee does have an addiction to alcohol or drugs is required to accommodate that employee to the point of undue hardship.

Employment Policies and Drug Testing

Many employers establish policies to address drug and alcohol testing in the workplace, particularly where the performance of the employee's duties under the influence of alcohol or drugs has safety implications. The legality of these policies was considered in the decisions Entrop et al. v. Imperial Oil Limited et al., supra, as well as a “sequel” of sorts to that decision, Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900 (2009), 96 O.R. (3d) 668, and Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205 (Federal Court of Canada - Court of Appeal).

Entrop et al. v. Imperial Oil Limited et al.

Imperial Oil's policy required employees to:

• Submit to random drug tests.
• Submit to random breathalyser tests.
• Disclose prior substance addictions.
• Pass a drug test before commencing employment.
• Submit to a drug test after a significant work accident or "near miss" or as part of a larger assessment of drug abuse.

A positive drug or alcohol test for an employee in a safety sensitive position would result in automatic termination from employment. A positive drug or alcohol test for an employee in a non-safety sensitive position would result in progressive discipline.

The Ontario Court of Appeal held that the random drug testing provisions of the policy violated the Ontario Human Rights Code (the "Code"). First, random drug testing was found to be inappropriate because drug tests were not an accurate measure of an employee's current impairment (i.e. trace levels of marijuana did not necessarily indicate impairment). Second, the policy imposed too severe a penalty on employees who tested positive for drug use because not all employees who registered a positive test could be said to be impaired. Third, the penalty of immediate termination was found to be too severe because, while possibly the appropriate sanction for drug use in some cases, termination could not be said to be the only sanction appropriate in all cases. Fourth, the Court held that the policy violated the Code because other responses to a positive drug test were not adequately considered, and as a result, an individual's individual capabilities could not be accommodated under the policy.

The Court upheld the use of random breathalyser testing for alcohol impairment for employees in safety sensitive positions on the basis that breathalysers could measure current impairment. The Court stated that alcohol testing is especially appropriate where the employee has little to no workplace supervision, and where employees are advised in advance that they may be tested in order to determine their ability to perform the essential requirements of the job.

However, the Court cautioned that all random alcohol testing will not be appropriate, even for employees in safety sensitive positions, unless the employer has met its duty to accommodate those employees that test positive. The duty to accommodate means that employers can not automatically terminate employees who fail an alcohol test and those employers may be required to engage in progressive discipline prior to termination, or permit the employee to undergo a treatment or rehabilitation program.

The Court did not uphold the portion of the policy that required employees to disclose all prior substance addictions to their employer. The employer could require an employee to disclose current substance abuse problems, or substance abuse problems which existed within the previous six years. The six year limitation period was selected because, based on the expert evidence, it is the point "when the risk of relapse or recurrence is no greater than the risk that a member of the general population will suffer a substance abuse problem".

The Court also failed to uphold the portion of the policy that required an employee to be automatically reassigned to a non-safety sensitive position after a disclosure of past substance abuse problems, and, that required the employee to submit to two years of rehabilitation and five years of abstinence to be reassigned to their previous position. This was held to be too severe a penalty that did not take into account more individually sensitive standards of accommodation.

The Court found that the requirement that all potential employees pass a drug test prior to beginning employment was also too severe, as drug testing could not show future impairment or even possible future impairment at work and because the only penalty for failing the test was a failure to hire the employee.

Finally, Imperial Oil's policy was upheld to the extent that it allowed for drug testing after a significant work accident, incident or near miss where the employer could establish that it was necessary as part of a larger assessment of drug abuse. For example, this type of testing could occur if there were grounds to suspect that drug use was a factor in the accident. Similarly, if the employee registered a positive drug test, the employer would have to make treatment opportunities available for the employee and could not simply dismiss the employee from employment.

Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900

In light of concerns raised by the court in Entrop, Imperial Oil embarked on an investigation of new drug testing technologies to identify a means by which on-the-job impairment from drugs, rather than merely past drug use, could be detected. Through this process, Imperial Oil received expert advice that oral fluid (saliva) drug testing could show current impairment by cannabis. Accordingly, Imperial Oil resumed random drug testing of safety sensitive employees using this new technology. The Union challenged the policy.

The board of arbitration in this case found that oral fluid (saliva) drug testing did not, in fact, permit immediate detection of drug impairment on-the-job. Rather, samples collected were required to be sent to a laboratory for testing and results would not be received for several days. As such, it was found, by a majority of the board, not to be comparable to breathalyzer testing, which had been found in Entrop to be permissible. The majority also noted that there had not even been “one substantiated case of an employee working impaired by reason of the consumption of a drug” and that there was “no significant evidence of drug use generally within the workforce away from work, or within the surrounding community.” As a result, a majority of the board concluded that random drug testing remained impermissible in this instance.

This result was upheld both at the Divisional Court and at the Ontario Court of Appeal.

Canada (Human Rights Commission) v. Toronto-Dominion Bank

In the federal context, a drug testing policy implemented by the Toronto-Dominion Bank was found to violate the Canadian Human Rights Act (the "Act") by discriminating against drug dependent employees. The policy required all new, and returning, bank employees, to submit to a urine drug test within 48 hours of hire. If the employee refused to submit to the drug test, they were dismissed from employment. If the employee failed the drug test, they could lose their employment if they refused to take advantage of the rehabilitation services made available to them, or if those efforts were not successful. Casual users of drugs could lose their employment if they continued to use drugs after testing positive on at least three occasions. Any rehabilitation costs were absorbed by the bank, and employees undergoing rehabilitation continued to receive full employment benefits.

The Court held that, even though it was established in good faith, the policy violated the Act because it tended to deprive drug dependent persons of employment opportunities.

The bank was found to have no defence to the violation of the Act because the policy was intrusive and was not found to be rationally connected to assessing job performance. The bank had failed to establish that drug related problems, such as poor performance, theft and crime, or a drug problem within the banking community existed so as to justify the use of the policy. Further, the bank had failed to attempt to use less intrusive measures of detecting impairment than drug testing.

Conclusion

The above cases demonstrate that any policy established to test for drug or alcohol dependence will be carefully scrutinized, and should not be instituted without legal advice.

Employers should be aware that any policy will be subject to the human rights legislation of the jurisdiction in which the work is being performed. In almost all cases, random drug and alcohol testing will be prohibited. Testing after a significant event may be acceptable if reasonable and probable grounds to believe that drugs or alcohol caused the event exist. In all cases, employers should be aware that they will be required to accommodate employees who have a substance abuse problem.

Furthermore, employers may be required to demonstrate that drug and alcohol testing is required in the specific circumstances facing their own workplace.

*Please note that greater clarity as to the legality of random alcohol testing in Canada is expected to be provided by the Supreme Court of Canada when it renders its decision in the case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., which was heard on December 7, 2012.

Polygraph Tests

In some jurisdictions, polygraph tests are unlawful. For example, the Ontario Employment Standards Act, 2000 states that:

No person shall, directly or indirectly, require, request, enable or influence an employee to take a lie detector test.

In any event, polygraph tests have not been accepted by Canadian courts as admissible evidence of truth; therefore even in jurisdictions where polygraph tests are not expressly prohibited by legislation, employers should not use polygraphs in the workplace.

Genetic Tests

No Canadian jurisdiction specifically regulates genetic testing in employment at this time.

The issue of genetic testing raises significant privacy concerns, as well as concerns about discrimination in the workplace. Employers should not attempt to enforce a genetic testing policy without first obtaining legal advice.