Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50884
oachht sessions to all employees. Yet workers were not pleased. Local union president Mike MacMullin said the policy trampled on workers' rights. He told CBC News employees subjected to testing were "proven guilty until they could prove they were innocent." The union filed a grievance just two months after the policy was implemented, and in November 2009, an arbitration board backed its position, saying Irving went too far by imposing random testing. The com- pany contested that ruling in June before Court of Queen's Bench Justice William Grant, who reserved his decision. Once released, Grant's decision will add another layer of complexity to the controversial, and at times confusing, Canadian approach to alcohol and drug testing in the workplace. Without spe- cific legislation governing such policies — and the Supreme Court of Canada reluctant to weigh in on the debate — experts say only a minority of work- places have adopted potentially life- saving practices. Yet the impact of sub- stance abuse on the workplace remains unmistakable. In a 2002 report, the Canadian Centre on Substance Abuse found that tobacco, alcohol, and illegal drugs cost the Canadian economy over $39 billion. The study reported that 13.6 per cent of the population drink alcohol excessively, and 14 per cent use marijuana. As the Canadian Centre for Occupational Health and Safety notes, substance abuse can increase the risk for accidents by impairing reflexes, con- centration, and alertness on the job. There are ways, however, for in-house counsel to steer their companies in the right direction when it comes to man- aging this threat. A good first step is to wade into the maze of arbitration deci- sions, human rights tribunal rulings, and court cases that have shaped the current approach to A&D testing in Canada. One key case came in 2000 in the Ontario Court of Appeal's Entrop v. Imperial Oil Ltd. The appeal court overturned an Ontario Human Rights Commission board of inquiry decision that found Imperial Oil's random A&D testing policy to be discriminatory, effectively opening up testing in the workplace. In a relief to many employ- ers, the panel ruled that breathalyzer testing effectively determines impair- ment and does not contravene privacy rights, and gave the green light to test- ing to determine current impairment. But the court also said employers must take a measured approach to positive test results. It encouraged a case-by-case approach and rejected immediate termi- nation following a single positive test. Yet the court did not go as far as many employers may have hoped, rul- ing against random testing, saying it fails to demonstrate actual or future impairment. The court also drew a line in the sand in terms of drug testing, saying the urinalysis technique fails to show impairment at the time of testing. The courts have also been asked to weigh into situations where an employee is tested as a condition of employment. In 2007's Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., the Alberta Court of Appeal upheld the company's right to rescind an offer of employment to an employee who was hired to work a safety-sensitive job on a client's work site. The employee had tested positive for marijuana use, but because he was found to be only a recreational user of the drug, he was deemed not to suffer from a disability, precluding the consid- eration of human rights abuses by the employer. The court ruled the policy did not assume the employee to be an addict, but "[r]ather, it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace." Several other decisions are also impor- tant to note. The Canadian Human Rights Tribunal, in Milazzo v. Autocar Connaisseur Inc. in 2003, suggested employers should get more leeway if random testing is conducted on employ- ees in safety-sensitive positions. The Alberta Court of Appeal's 2005 decision Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement suggests employers need to establish a strong purpose for testing. In that case, a policy aimed at maintaining an employ- er's image was deemed unreasonable. Employers have also been instructed on whether testing is permissible after a dangerous incident in the workplace and reasonable cause exists to suspect an employee is impaired. In 2000's Canadian National Railway Co. v. CAW- Canada, an arbitrator backed testing of employees in safety-sensitive positions under those very circumstances. Arbitrator Thomas Joliffe clarified those conditions in a 2008 case involving Pipefitters Local 663 and the Mechanical Contractors Association of Sarnia, which implemented testing policies on behalf of its oil-company clients. Joliffe offered four rules that may trigger a reasonable cause or post-incident test: • on-site behavioural, physical, or ver- bal demeanour suggesting impairment — actual supportable observations; • an incident of "such magnitude" — a per- sonal injury or meaningful occurrence; • circumstances and observations dur- ing an investigation which lead to a legitimate concern that impairment was a factor; or • a significant accident or incident which needs some investigation result- ing in a realistic suspicion that impair- ment played a role. Of course most employers would prefer to take a proactive approach that nips accidents in the bud before a post- incident response is necessary. Yet Barb Butler, a Toronto-based consultant to organizations implementing A&D test- ing policies, says she is astonished at how few organizations have done so, INHOUSE OCTOBER 2010 • 27