Canada: Drug And Alcohol Testing: An Update

The issue of drug and alcohol testing is about to receive significant judicial scrutiny which will hopefully lead to some clarity around whether or not employers may randomly test employees for drug and alcohol use. Guidance in this area would be welcomed by employers.

Drug and alcohol testing has long been a hot topic for employers, particularly in Alberta and more specifically in the oil sands where drug and alcohol has tended to be more prevalent on employee camps (i.e. a workplace) and in an industry which uses heavy machinery and where safety is a high priority.

There are a number of issues in relation to drug and alcohol testing. Employers argue that the safety of employees (to ensure, for example, that the operator of a mechanical shovel is not impaired by alcohol or drugs) must be paramount. The other side of the coin (which is most often argued by unions) is that drug and alcohol testing is potentially a breach of an individual's human rights as well as their privacy rights.

Drug and alcohol testing is problematic from a human rights perspective because of the treatment of employees who may be dependent on drugs or alcohol, or who are perceived to be dependent on drugs or alcohol, as both of these may be considered a "disability" which is a protected ground under human rights legislation throughout Canada. As a result, employers may not discriminate against such employees and must accommodate their disability up to the point of undue hardship. Generally, human rights laws allow for drug and alcohol testing where there are reasonable grounds and in the case of post-accident/incident testing. In contrast, the case law in this area has consistently held that random drug and alcohol testing is prohibited, with few exceptions. Under current case law, testing where an employee has disclosed a drug or alcohol dependency may be permissible within certain limits for employees holding safety-sensitive positions, provided it is in concert with accommodation measures.

In terms of privacy, legislation throughout Canada tends to impose the obligation that information can only be collected for purposes that are "reasonable". Collecting personal information from a drug/alcohol test is much more likely to be reasonable for safety-sensitive positions than for non-safety-sensitive ones.

Related to all of these concerns, one of the problems with many types of drug testing is that the testing itself does not measure impairment at the time of the test. While an alcohol test is likely to show that an employee is impaired at the time the test is taken, an employee may test positive for a drug test on a Monday morning having only smoked marijuana once on the Friday before. As a result, it is not proof of current impairment.

Add to this, the complexity of other types of impairment (sleep deprivation being the most obvious) which are not being tested for, it is perhaps not surprising that courts have yet to definitively weigh in on the topic of random testing.

Lawyers have waited a number of years for the courts to give some guidance in this area, and two cases have recently been released.

The first is a case that originated in New Brunswick and has made its way to the Supreme Court of Canada. In this case, the employer (Irving Pulp & Paper Limited) implemented a random alcohol testing policy at its paper mill. The union (Communications, Energy and Paperworkers Union of Canada, Local 30) challenged its ability to do so and that is the issue that is before the Supreme Court. Note that this relates to random alcohol testing only and not drug testing.

The second case originated in Alberta. In about the middle of 2012, a number of employers (including Suncor) signed up to a new initiative called DARRP (Drug Alcohol Risk Reduction Program). The idea behind DARRP was for employers to introduce random drug and alcohol testing for employees in safety sensitive positions, and then carry out an analysis to determine whether or not the employers' safety record improved, following the introduction of random testing. Suncor intended for random testing to begin for its own employees on October 15, 2012 and for random testing for all employees on its sites to begin as of January 1, 2013. However, the same union (Communications, Energy and Paperworkers Union of Canada, Local 707) brought a grievance challenging Suncor's rights to do so. The grievance was to be heard after October 15, 2012 and, accordingly, the union brought an application for an injunction, preventing Suncor from implementing the policy until the matter had been heard at arbitration. The injunction application was successful at the first instance and at two subsequent levels of appeal which meant that Suncor was not able to implement the policy in relation to its union employees, as scheduled. Interestingly, Suncor's decision not to implement policy for all employees as at October 15 actually eroded its argument that the policy had to be implemented now, for safety reasons.

It is important to note that the legal issues being decided in an injunction application are different to those which will be decided at the arbitration and the decision of the courts to implement and uphold the injunction will not necessarily have any bearing on the ultimate decision at the grievance.

At the time of going to print, neither judgment had been released. It is safe to say, though, that the law in this area is about to develop. Watch this space.

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