An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Sunday, 17 March 2013

Are Random Drug and Alcohol Tests Legal?

A controversial and contentious area of workplace law concerns the issue of random drug and alcohol testing. It is important to note that the Ontario Employment Standards Act, 2000 does not specifically address the issue, thus leaving the issue to labour boards, courts, and the Human Rights Tribunals.

In a 2000 decision from the Court of Appeal for Ontario, Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON CA), the top Ontario court held that random alcohol testing was not, on the facts of that case, an unjustifiably discriminatory practice that contravened the protections afforded to employees by the Ontario Human Rights Code.


Facts in Entrop


Entorp concerned an Imperial Oil employee who worked at one of the company’s refineries. In the wake of the Exxon Valdez disaster Imperial implemented a drug and alcohol screening policy for employees in safety sensitive positions.

Although Mr. Entrop had been ‘clean’ for several years, in accordance with the policy he disclosed his past addiction to alcohol. Mr. Entrop was immediately reassigned to a new, ‘safer’ position, which he grieved. He was eventually reinstated to his original position following a complaint to the Human Rights Tribunal of Ontario.

Upon reinstatement to his old position, Mr. Entrop was required to give an undertaking that he would remain clean and that he would submit to random alcohol and drug testing. Mr. Entrop made a complaint to the Human Rights Tribunal about these requirements of Imperial’s policy as well, alleging that being made to submit to these tests violated his right to be free from discrimination in the workplace as protected by section 5 of the Ontario Human Rights Code.

Decision of Court of Appeal for Ontario


In a lengthy decision from the Court of Appeal, touching on issues beyond the scope of this post, the Honourable Justice John Laskin held that the random alcohol test was prima facie discriminatory, since anyone who tested positive faced discipline. Furthermore, and perhaps to the ire of some employers, such workers were protected by section 5 of the Ontario Human Rights Code because they were either actual or perceived substance abusers, and “substance abusers are handicapped and entitled to the protection of the Code.” (Para. 89.)

Applying the test established by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3, [“Meiorin”], Justice Laskin then went on to consider whether, while prima facie discriminatory the provisions of Imperial Oil's policy were nonetheless defensible as bona fide operational requirements of the position.

The first question to be answered under the Meiorin test is whether the policy was adopted for a purpose rationally connected to the performance of the job? On this point Justice Laskin held that:
Common sense and experience suggest that an accident at a refinery can have catastrophic results for employees, the public and the environment. Promoting workplace safety by minimizing the possibility employees will be impaired by either alcohol or drugs while working is a legitimate objective. (Para. 94)

The second question was whether Imperial Oil adopted these testing provisions in an honest and good faith belief that they were necessary to accomplish the company’s purpose. Again the answer was an easy yes for the court.

Finally, the third question for the court was whether these testing provisions were reasonably necessary to accomplish Imperial Oil’s purpose. Or, put more basically do the ends justify the means?

This is where the case turned. Justice Laskin wrote:
As the Board held, Imperial Oil has the right to assess whether its employees are capable of performing their essential duties safely.  An employee working in a safety-sensitive position while impaired by alcohol or drugs presents a danger to the safe operation of Imperial Oil’s business.  Therefore, as the Board found, “freedom from impairment” by alcohol or drugs is a BFOR.  An employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job.  The contentious issue is whether the means used to measure and ensure freedom from impairment – alcohol and drug testing with sanctions for a positive test – are themselves BFORs. Are they reasonably necessary to achieve a work environment free of alcohol and drugs? (Para. 98)

In finding that Imperial’s drug testing was not defensible the court noted that the urinalysis was not sophisticated enough to tell whether the employee was impaired at the time of the testing, or merely had used drugs sometime in the past: “It does not demonstrate that a person is incapable of performing the essential duties of the position.” (Para. 99)

However, as Justice Laskin wrote:
The provisions for random alcohol testing for employees in safety-sensitive positions stand on a different footing. Breathalyzer testing can show impairment. (Para. 106)

In upholding the random alcohol testing policy Justice Laskin wrote:
Imperial Oil can legitimately take steps to deter and detect alcohol impairment among its employees in safety-sensitive jobs.  Alcohol testing accomplishes this goal. For employees in safety-sensitive jobs, where supervision is limited or non-existent, alcohol testing is a reasonable requirement. (Para. 110) [Emphasis added.]

In addressing the issue of whether a single positive test could warrant dismissal from employment, however, Justice Laskin wrote that:
dismissal in all cases is inconsistent with Imperial Oil's duty to accommodate. To maintain random alcohol testing as a BFOR, Imperial Oil is required to accommodate individual differences and capabilities to the point of undue hardship. That accommodation should include consideration of sanctions less severe than dismissal and, where appropriate, the necessary support to permit the employee to undergo a treatment or a rehabilitation program. (Para. 112) [Emphasis added.]

Commentary


Entrop is now over a decade old, and one should note that in the wake of that decision Imperial Oil did embark on a process of finding a drug-screening procedure that would measure current levels of impairment, see Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2009 ONCA 420.

For most reviewing the decision the outcome will seem logical; working at an oil refinery or piloting oil tanker is a dangerous profession and one would expect workers to be sober. The same is true of a lot of professions most would agree, pilots, truck drivers, and doctors are just some of the professions that may come to mind.

But what about those jobs that are not as dangerous? File clerk, waiter, custodian? Are requirements that those employees be sober while at work equally as defensible?

Takeaways


Whether a policy of random drug and alcohol testing will be defensible or discriminatory is a question that can only be answered on a review of its actual facts. As the Entrop decision demonstrates, there are a number of considerations that have to be had before a court can conclude that the policy is ‘legal’ or not.

If you are an Ontario employee and have been asked to submit to a random drug or alcohol test in the workplace, it may be prudent to seek professional legal advice before doing so.

Sean Bawden is a labour and employment lawyer with Ottawa’s Kelly Santini LLP and can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

If you are an Ontario employer and are considering adopting a drugs and alcohol policy or are considering terminating an employee for substance abuse, it is probably prudent to seek professional legal advice on those issues as well before taking any decisions. The professional employment lawyers at Kelly Santini LLP have considerable experience advising employers on their rights and responsibilities, and we would be happy to be of service to you as well.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.



2 comments:

  1. Hi Sean- not sure if you remember me (we sat next to each other at the Employment Law Summit last year). I am really enjoying your blog. Keep up the good work!

    Regards,

    Shannon Cole

    ReplyDelete
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