By Malcolm J. MacKillop and Hendrik T. Nieuwland
Implementing workplace
drug and alcohol testing What factors must you consider before rolling out a program company-wide.
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nowing the best way to introduce a drug and alco- hol testing policy in your workplace is probably one of the most difficult chal-
lenges an in-house counsel can face. Careful consideration must be paid to a number of legal principles, like occu- pational health and safety, privacy, and human rights. The Ontario Court of Appeal has given
useful guidance in the 2000 landmark decision Entrop v. Imperial Oil Ltd. and its 2009 follow-up decision in Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (Nanticoke). Further guidance has been given in two recent decisions from a British Columbia arbitration board (Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301) and the New Brunswick Court of Appeal (Irving Pulp & Paper Ltd. v. C.E.P.U.C, Local 30). Taking a cue from these authorities,
here are answers to three common ques- tions about workplace drug and alcohol policies. 1. Can my company introduce drug or alcohol testing? Almost all of the case law on this
point comes from unionized workplaces. In general, an employer can introduce a workplace policy as long as it is reason- able. Some arbitrators have held that for such a policy to be reasonable an employ- er needs to show a history of drug or alcohol-related workplace incidents and that less intrusive measures to counter the problem have failed. However, more recent case law, in particular the New
Brunswick Court of Appeal's decision in Irving, says this evidence is not necessary where the testing policy is introduced in a workplace that is inherently dangerous and where the policy targets employees in safety-sensitive positions. 2. Can the drug or alcohol testing be ran- dom? With respect to random alcohol test-
ing, the arbitral case law is divided. Some arbitrators have held that testing for alco- hol impairment is only reasonable where there is "just cause." Examples of just cause include using alcohol
testing to
investigate a workplace accident or "near miss," or using it as part of an agreed-upon alcohol rehabilitation program. Other arbitrators, along with the Ontario and New Brunswick courts of appeal, have found random alcohol testing reason- able where it is limited to employees in safety-sensitive positions and is done by a breathalyzer. The use of a breathalyzer is key because the courts consider it less intrusive of employee privacy and — most importantly — it can accurately deter- mine whether an employee is currently impaired by alcohol. This ability of the breathalyzer was pivotal to the Ontario Court of Appeal's conclusion in Entrop that Imperial Oil's random alcohol testing policy complied with the Human Rights Code; the random testing was a bona fide occupational requirement only because it could confirm that an employee was cur- rently impaired by alcohol and thereby promote the policy's objective of improv- ing workplace safety. Random drug testing, however, is uni- versally frowned upon. As noted by the
Ontario Court of Appeal in Imperial Oil, this is principally because there is no test available to accurately determine whether an employee is currently impaired by drugs. Blood, urine, and saliva tests, at best, show that an employee used drugs in the past, but do not show the employee was actually impaired by drugs at the workplace. Furthermore, such tests are considered highly invasive of employee privacy. For these reasons a majority of arbitrators have held that any form of workplace drug testing is unreasonable, although a minority (like the arbitrator in Rio Tinto) have held that drug testing can be used if there is "just cause." 3. Can I fire an employee who refuses or fails a drug or alcohol test? In provinces without privacy legislation
(federally regulated employers are subject to the Personal Information Protection and Electronic Documents Act and may be required to first obtain the employee's consent), employers whose testing policy is otherwise deemed to be reasonable (because it applies to safety-sensitive pos- itions or there is "just cause") are able to require employees to take the test. If the employee refuses to take the test, or takes but fails the test, an employer can impose discipline. Whether termination is justified will depend on the employee's personal circumstances. Both the courts and arbi- trators have found that a zero-tolerance policy is unreasonable and contrary to the Human Rights Code. Since drug and alcohol abuse are considered disabilities, a positive test may signal dependency and thereby trigger the employer's duty to accommodate the employee to the point of undue hardship. The courts have stated that the duty to accommodate requires the employer to tailor the severity of discipline to reflect the specific circumstances of the employee. IH
Malcolm MacKillop and Hendrik
Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP in Toronto.
INHOUSE DECEMBER 2011/JANUARY 2012 • 13
