Originally published in Blakes Bulletin on Labour and Employment, August 2007
Canadian employers are in a new era of comprehensive risk assessment and risk management. Increasingly, occupational health and safety issues are among the priorities in the workplace. It is not surprising then that mandatory drug and alcohol testing programs are the subject of both controversy and recent jurisprudence.
Even within the large body of case law which addresses drug and alcohol testing in the workplace, two different approaches have evolved. Western Canadian case law has generally permitted broader drug and alcohol testing programs in workplaces that are safety-sensitive. A narrower approach has been forged by Ontario cases. With this divide, four key decisions provide guidance on the rights and obligations of an employer that chooses to implement a drug and alcohol testing policy. In addition, a recent decision of an Alberta labour arbitration panel adds further clarity to the human rights, and occupational health and safety issues in developing a policy.
In Entrop, an Ontario court held random, blanket drug testing of employees or prospective employees is, on its face, discriminatory, even for safety-sensitive positions, since it does not reflect actual or future job impairment. The case law distinguishes between drug testing and alcohol testing since a positive breathalyzer test for alcohol shows a current impairment and, therefore, is acceptable testing for safety-sensitive positions.
By contrast, drug testing does not demonstrate current impairment, but past usage and is, therefore, not acceptable. The case law indicates that a requirement of disclosure of past substance abuse is acceptable only if the problems occurred within six years of the disclosure date. However, automatic dismissal upon disclosure of such a history by a current employee or refusal to hire a prospective employee is unacceptable.
Entropheld pre-employment drug testing or random drug testing, even for safety-sensitive positions, is a violation of human rights law since it cannot assess actual or potential future impairment on the job. Tests should be given only when there is reasonable cause to suspect the employee will be impaired in performing job duties safely and satisfactorily. Tests should be part of a larger drug assessment program.
By contrast, Milazzo held pre-employment and random drug testing of bus drivers was a "legitimate way to promote road safety", and was reasonable and necessary in this case. The Canadian Human Rights Commission in Milazzo found that Autocar was distinguished from other employers because:
- It presented evidence that drug use by drivers in the transportation industry was a real problem with significant implications for public safety.
- Bus drivers spend significant time on the road without supervision, with no way to detect drug and alcohol abuse.
- The workforce is seasonal and transient.
- The policy is required by U.S. mandatory drug testing legislation, which imposes fines on companies that allow drivers to drive without being tested.
The tribunal, however, found that employers are not automatically entitled to terminate employment or withdraw offers without first considering if accommodation is possible. From the decision in Milazzo, it can be discerned that the pre-employment and random drug testing of employees would have been justified had the employer accommodated those employees and prospective employees who failed drug tests.
It is important to note that an individual found to have a drug or alcohol addiction must be accommodated by the employer in the workplace, unless the employer can demonstrate it is not possible without causing undue hardship.
Employees who hold safety-sensitive positions may be randomly tested for alcohol use because a positive breathalyzer can measure current impairment on the job. The testing should be part of a larger assessment program to determine the employee’s alcohol use or abuse. However, alcohol addiction triggers a duty to accommodate on the part of the employer to the point of undue hardship.
Bona fideoccupational requirement (BFOR) is a common defence raised by employers against allegations of employment discrimination based on drug or alcohol testing policies. In the Meiorin decision, the Supreme Court of Canada set out what is now the accepted test for determining if an employer has established a BFOR and satisfied the duty of accommodation to the point of undue hardship:
- Did the employer adopt the policy or standard for a purpose rationally connected to the performance of the job?
- Did the employer adopt it in an honest and good faith belief that it was necessary to the fulfillment of that legitimate, work-related purpose?
- Is the policy or standard reasonably necessary to accomplish that legitimate, work-related purpose?
An employer must show the policy or standard adopted is the least discriminatory way to achieve the purpose or goal of the testing policy or standard. The employer must demonstrate it is impossible to accommodate individual employees without imposing undue hardship on the employer. Accommodation to the point of undue hardship requires the employer show:
- The cost of accommodation would substantially alter the nature and affect the viability of the enterprise, or
- Notwithstanding the accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
In Chiasson, the Alberta Court of Queen’s Bench applied the Entrop decision and found mandatory pre-employment testing was prima facie discriminatory against people who are drug dependent, because it denied them employment contrary to the Alberta Human Rights, Citizenship and Multiculturalism Act. The court also rejected a human rights panel finding, based on the complainant’s evidence, that because he was a recreational user of cannabis, his use was a matter of personal voluntary choice and not a disability.
The court referred to both Entrop and to a Québec decision, Boisbriand, and adopted the approach in Entrop, finding that anyone testing positive under the employer’s policy is entitled to the Act’s protection. The court adopted reasoning from Entrop to the effect that the Human Rights legislation protects those who have or had an actual or perceived disability, such that an employer can discriminate against an employee because of a perceived disability through the operation of a drug testing policy that denies employment to individuals who test positive on drug tests.
Therefore, even with respect to recreational users, the employer’s policy was prima facie discriminatory as it imposed a pre-employment barrier with zero tolerance and no accommodation. The Alberta court went on to find in Chiasson that the pre-employment drug testing policy did not pass the third arm of the Meiorin test, that is, the policy or standard was not reasonably necessary to accomplish a legitimate, work-related purpose.
The court found pre-employment urine tests do not test for likely impairment at work and, to the extent they may provide some information about the risk of such impairment, there are much more direct, effective, efficient and individual methods for employers to monitor impairment at work. Chiasson also found the employer failed to demonstrate compliance with procedural or substantive components of the duty to accommodate. The court stated that, given the absence of accommodation, the employer has failed to justify its policy or the treatment of Mr. Chiasson.
The court does provide some suggestion as to how a pre-employment drug policy could be properly framed within a comprehensive drug and alcohol policy. Accordingly, it is possible that pre-employment drug and alcohol testing in certain circumstances may be reasonably necessary (in unique safety-sensitive circumstances, such as those found in Milazzo) and, if administered properly (as outlined by the court in Chiasson), the employer might meet their duty to accommodate to the point of undue hardship. However, Chiasson ruled pre-employment drug testing was discriminatory on its face and not reasonably necessary. Therefore, the court ordered the employer to immediately cease its contravention of the Act by revising its drug and alcohol testing policy.
Impact ofChiasson: The Bantrel Panel Decision
Chiassonhas recently been considered by an Alberta labour arbitration panel in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local #488 et al. v. Bantrel Constructors Co. (Bantrel).
This case was not about post-incident or reasonable cause testing, it was an example of a universal policy applied to all workers who would work or had been working at a Petro-Canada site. To continue its contract, Bantrel adopted and implemented Petro-Canada’s policy. Unions grieved.
The panel applied the three-part test set out in Meiorin and found the impugned policy satisfied all three inquiries. First, Bantrel adopted the policy to reduce the risk of having an impaired employee onsite and to improve safety. Second, pre-access testing of all employees was necessary to reduce the risk of impairment on the job site and to improve safety. Finally, the panel distinguished the case before it from the case in Chiasson to find the policy was reasonably necessary to accomplish a reduction in the risk of impairment on the job site (Chiasson had not reached that conclusion). In particular, the panel raised four points distinguishing Bantrel from Chiasson:
- Automatic termination. In Bantrel, unlike Chiasson, the policy did not provide for automatic termination where a drug test had been failed.
- Other means. The panel, unlike Chiasson, found detection of impairment through visual and other observations by supervisors was unreliable and, given the nature and purpose of the testing (i.e., a positive test led to additional and full assessments of the individual), the testing by Bantrel was reliable, inexpensive and easy to use.
- Other measures. Unlike the policy reviewed in Chiasson, Bantrel’s policy involved fair warnings to employees and the presentation of information about the rate of elimination of drugs from an individual’s system.
- Evidence. The evidence satisfied the panel that Bantrel had chosen a testing policy that operates in conjunction with an assessment and counselling regime, thereby meeting its burden under the Meiorin test.
SUMMARY OF TESTING LAW
There are different types of substance testing and implications for each, as follows:
Pre-employment Testing.The law of pre-employment drug and alcohol testing is yet to be fully reconciled. However, the Chiasson decision will be before the Alberta Court of Appeal in the fall of 2007. For the moment, support for pre-employment drug and alcohol testing will rest with an employer’s ability to satisfy the third requirement of the Meiorin test, and there is case law to the effect that such testing fails the reasonable necessity portion of that test.
Nevertheless, in certain unique safety-sensitive circumstances, pre-employment drug testing may be found to be reasonably necessary, as it was in Milazzo. Therefore, employers should be extremely cautious before adopting such policies, and ensure they consider whether they pass the reasonable necessity test given their unique circumstances, and they have appropriate procedures and policies in place to accommodate the employee to the point of undue hardship if they fail the pre-employment drug or alcohol test.
Random Testing.Random drug testing cannot measure present impairment and, therefore, cannot be shown to be reasonably necessary to accomplish the goal of ensuring workers are not impaired by drugs. In Milazzo, however, the tribunal found random drug testing raised a "red flag" that helps identify drivers who have a higher risk of accident.
Random alcohol testing of employees in safety-sensitive positions may be permissible. Random testing of an employee in a non safety-sensitive position is generally not acceptable. The case law in this area is relatively unsettled. If a policy drafted by an employer was specific enough to cover drug and alcohol testing of employees in non-safety roles for the purpose of reducing overall substance abuse problems in a small community, it may be acceptable in some cases.
Post-Incident Testing.Post-incident or "reasonable cause" testing for either alcohol or drugs, in a safety-sensitive environment, may be acceptable in specific circumstances. Reasonable cause and post-incident drug and alcohol testing of employees in non safety-sensitive positions has not been an issue that has been before the courts. If an employer could establish a BFOR, and there was no other way to ensure accomplishment of overall workplace safety, then the employer might pass the reasonable necessity arm of the Meiorin test.
Post-Reinstatement (Rehabilitation) Testing.Rehabilitation testing is an option tied into an employer’s attempt to accommodate employees with a disability, and may be incorporated into a rehabilitation program. Rehabilitation testing would still have to pass the BFOR requirements outlined above from the Meiorin test. The case law has held it is important to maintain a policy that can be clearly understood by employees and is clear in its goals and methods for limiting workplace substance abuse. This is useful in meeting the "good faith" criteria for a BFOR. A policy that is flexible in accommodating substance use problems of the individual employee is also more likely to be supported by the courts.
Privacy.Finally, federal and provincial privacy law statutes address the issue of collection, use and disclosure of personal information. Personal information is broadly defined to include information about an identifiable individual. It is important for employers to consider that once they have conducted testing, they will be in possession of personal information and will have to maintain compliance with privacy legislation.
Test results should be kept confidential and maintained in strict security with access granted only to company employees who need to have access to the information as part of their employment duties. Employees also have a right to access their own personal information on request and ensure correction if records of the company are inaccurate.
Case law points to the following steps and recommendations before implementing a drug and alcohol testing policy.
Consider the need for testing.The case law does not support testing for frivolous reasons and under no circumstances will testing to improve or gauge productivity be justified. Be prepared to establish that freedom from impairment is a necessary component of the job or work site. Establishing that those positions subject to such testing are safety-sensitive is also helpful, but not determinative of a right to test.
Disclosure.Ensure your organization discloses pre-employment drug and alcohol testing to all prospective employees as soon as possible, preferably in the job advertisement. Warn prospective employees a positive result will automatically be followed by a second test. If it’s part of a site access program, ensure all contractors realize and inform their employees your organization has implemented a pre-site access testing program and positive results will automatically be followed by a second test. Also, provide information regarding the rate of elimination of drugs from employees’ system and additional treatment information.
Comprehensive policy.Develop a comprehensive policy that addresses the reasons for testing, provides employees with notice of testing, and aims to assist employees who have dependencies to rehabilitate themselves. Such policies should avoid automatic termination in the face of a failed test.
Probationary period.For employees medically determined to be at a low risk for substance dependency (recreational users, and those whose second test is negative or have a negative follow-up assessment), there should be enhanced supervision by drug-awareness trained supervisors and mandatory participation in random (saliva) impairment testing for a probationary period.
Withdrawal of offer of employment.For employees who admit to or are medically assessed to be at high risk for substance dependency, the offer should be withdrawn, subject to allowance for re-application and consideration, if the employee voluntarily enters and successfully completes a recognized substance abuse treatment program at the employees’ expense.
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.