Drug and alcohol testing of employees in the construction industry continues to be an area of concern and constantly developing law for employers. The issue of random testing was recently dealt with by the Supreme Court of Canada in the Irving Pulp and Paper Ltd. decision of June, 2013, wherein the Court held that random alcohol testing was impermissible without extraordinary circumstances showing a pervasive problem in the workplace. An alert on this decision can be viewed here.
This month, an arbitration award out of Ontario (Re Mechanical Contractors Association Sarnia et. al.) held that pre-access testing was an unreasonable exercise of management rights, and that it was in violation of the applicable human rights legislation.
The general contractor had insisted that each of its contractors
have a drug and alcohol policy which met or exceeded the standards
of its own policy or that of the 2005 Canadian Model for Providing
a Safe Workplace. The contractors subsequently imposed pre-access
testing (which included breath, saliva, oral fluid and urine
testing) in accordance with this arrangement.
In coming to the conclusion that the testing was unreasonable, the
arbitrator relied heavily on the Irving Pulp and Paper
Ltd. ruling that there was an obligation upon employers to
justify the invasion upon employee privacy rights occasioned by
drug and alcohol testing. As with random testing (which was dealt
with in that SCC decision), the arbitrator held that it was
insufficient for an employer to cite general concerns about safety
as a justification for the imposition of pre-access drug testing,
but that an employer must show evidence of an actual, existing
substance abuse problem at the specific worksite(s)
"which creates a real potential for significant negative
workplace health and safety events" in order to satisfy the
pre-condition for drug testing without cause. That was determined
to be a precondition before the arbitrator would consider whether
the policy itself is reasonably balanced against privacy
interests.
In support of its argument that there were pre-existing substance
abuse problems, the employer relied on evidence of general
statistics surrounding drug and alcohol use in Southwestern
Ontario, statistics suggesting reduced positive pre-access tests at
that location, and statistics which suggested reductions in
positive post-incident tests for other employers who had
implemented pre-access testing.
The arbitrator concluded that this form of evidence which he
labelled "broad-based statistical inferential reasoning"
was not sufficient to prove an existing problem on a balance of
probabilities. In particular, the arbitrator rejected the evidence
given by a number of experts called by the employer since their
conclusions were based upon broad statistical averages, even though
a number of them were qualified to opine on statistics.
The award also held that the pre-access testing was a violation of
human rights legislation in that pre-access testing does not
demonstrate impairment at work (since the testing occurs prior to
access) and there was no evidence that a positive test would be an
accurate predictor of future use. The discrimination occurred here
because the result of the positive test was a ban from Suncor
worksites and an effective termination of employment. Moreover, the
policies failed to include an individual consideration or
accommodation of employees.
If this award is followed, it means that an employer must show a
pre-existing drug and/or alcohol problem at its worksite before it
can implement either random testing, or pre-access testing.
Moreover, it appears that an employer will not be able to rely on
general statistical averages regarding substance-use in the region,
or on effectiveness of similar programs for other employers to show
a problem. At a minimum, an employer implementing drug testing will
need evidence that those statistical averages relate to the
worksite in question; and more likely, will require actual evidence
from its own specific workplace before it can justify not-for-cause
testing. Once it clears this hurdle, employers will still be faced
with showing that the testing is reasonably balanced against
privacy rights by showing that the policy is effective and impairs
employee rights to the minimal extent necessary.
This award is further evidence of the contrasting attitudes of
Eastern and Western Canadian arbitrators. Western Canadian
arbitrators have valued safety over privacy. However, in Western
Canada there is also more supporting data, particularly in the
construction industry, which is important, if not vital, in
justifying testing. The requirement to provide evidence of an
existing substance abuse problem limits an employer's ability
to take proactive steps to protect the health and safety of
workers, the public and property and moves employers into a
reactive position wherein it must wait for problems, and
potentially injuries/fatalities, before it can take steps to limit
those risks. Which should be more important? Safety or privacy?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.