August 17, 2015
On March 24, 1989, Imperial Oil’s Exxon Valdez struck a reef off the shore of Alaska and spilled over 10 million gallons of crude oil into the sea. The spill, which was thought to have been caused in part by the ship captain’s alcohol abuse, formed part of the impetus for Imperial Oil to develop a random drug and alcohol testing policy. This policy was the subject of a human rights complaint that eventually made its way to the Ontario Court of Appeal and resulted in the well-known Entrop v. Imperial Oil decision, in which the court decided that Imperial Oil’s policy infringed the Ontario Human Rights Code.
Undeterred by the result in Entrop, employers continued to implement random drug and alcohol testing policies in the years following the decision and unions continued to challenge these polices at arbitration. Unions claimed that the policies infringed employee privacy and were thus an unreasonable exercise of management rights. The policies were also sometimes challenged as discrimination on the basis of disability. Employers resisted these challenges on the basis that the policies were a legitimate attempt to deter substance abuse in the workplace that could cause disasters compromising either workplace safety, public safety or creating environmental impacts such as the Exxon Valdez spill.
Case Law on Random Testing: Evolving Since Imperial Oil
These legal skirmishes produced a number of inconsistent decisions. Adjudicators were not able to reach a consensus on the difficult issues surrounding random testing, such as whether employers had to wait for evidence of a drug and alcohol problem before implementing random testing. This article is intended to canvass the current legal limits and requirements in Canada, for those employers and organizations concerned about the safety and security of their operations, who still wish to consider the possibility of random drug and/or alcohol testing programs.
The Supreme Court sought to resolve some of this uncertainty in the summer of 2013 with its decision in Irving Pulp. This case arose after the union brought a grievance challenging the mandatory random alcohol testing policy that had been unilaterally implemented by the employer. The policy required that 10% of the company’s employees in safety-sensitive positions undergo breathalyzer testing in the course of a year. The Supreme Court allowed the grievance, with the majority deciding that the scant evidence of a substance abuse problem put forward by the employer was not sufficient to outweigh the employees’ privacy rights.
The decision in Irving Pulp failed to put this issue to rest, and disputes concerning this issue continued to be litigated. On March 28, 2014, the majority of the arbitration board released its decision in Suncor v. Unifor, Local 707A. This marked the first reported arbitration decision on random testing since the Supreme Court of Canada weighed in on the issue with its Irving Pulp decision. The Suncor case is currently under judicial review, but a final decision has not yet been released.
More recently, in January 2015, a Saskatchewan arbitrator decided an employer contravened its collective agreement by stationing drug-sniffing dogs at the entrance to its premises.
While it is not accurate to say that random drug and alcohol testing is illegal in Canada, cases such as Entrop, Irving Pulp and Suncor have made it exceedingly difficult for employers to implement such policies in unionized workplaces. Only certain workplaces will give rise to the conditions that are prerequisites to the implementation of such policies. Even if those conditions exist, employers have to exercise a great deal of caution when designing these policies.
Current Requirements to Establish a Program of Random Testing
When discussing random testing, it is important to draw a distinction between the requirements flowing from human rights legislation and those which are drawn from management rights clauses in collective agreements. While human rights legislation applies to all employers, non-union employers are free from the restrictions imposed by management rights language. Of course, employers may protect themselves from policy grievances regarding random testing by negotiating the testing language into the collective agreement, but the current state of case law on this issue makes it highly unlikely that a union would voluntarily agree to such language.
There has not been a significant human rights challenge to a random testing policy since Irving Pulp (which was not a human rights complaint), and it will be interesting to see whether the Supreme Court’s dim view of random testing in a unionized workplace will influence the treatment of such policies in a non-union environment. However, at the moment, different considerations apply to non-bargaining unit employees.
The following is a brief overview of the requirements that employers must consider before implementing a random testing regime in a unionized workplace.
Unfortunately, for many employers, it is not clear whether their workplace is dangerous. We know that a nuclear power plant will be considered dangerous and a book store will not. The problem is that this leaves a lot of gray area. Medication errors in a long-term care home may result in illness or fatalities, but does that make such workplaces dangerous? What about high-rise construction projects, where momentary lapses in attention can result in serious injury? The answer is not entirely clear.
With respect to alcohol, breathalyser testing is acceptable. In Arbitrator Michel Picher’s 2006 Imperial Oil decision (which concerned the revised policy that Imperial Oil put in place after Entrop), he noted that oral swabs will assess current impairment by marijuana. However, there is no technology capable of testing impairment by other drugs. To the best of the authors’ knowledge, this has not changed since 2006. Unfortunately, this prevents employers from testing for drugs other than marijuana (eg. cocaine, opiates).
Even before the release of the Suncor and Irving Pulp decisions, employers seeking to implement random testing policies faced an uphill battle. The heavy evidentiary burden imposed by these recent decisions serves to make the task significantly more difficult. This is unfortunate, because, as noted by a number of the expert witnesses in random testing cases, these policies can function as an effective method of deterring substance abuse and removing offenders from the workplace. There is no doubt that random testing policies can infringe upon human rights and raise privacy issues, but the evidence put forward in these cases suggests that, if the threshold tests for safety and risk in a workplace discussed above are met, appropriate policy design may alleviate most concerns arising from those areas.
The judicial review of the Suncor decision will give Canadian courts another opportunity to strike an appropriate balance between privacy, human rights and workplace safety. Hopefully, Canadian adjudicators can find a solution that protects employee privacy and human rights while allowing employers to avoid incidents such as the Exxon Valdez spill.