Nearly two years have passed since the Supreme Court of Canada ruled in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. that the mandatory, random alcohol testing of unionized employees in safety-sensitive positions at Irving’s operations in Saint John, New Brunswick was unreasonable. Yet employers still struggle to understand how to manage testing policies in the workplace.
In the instance of oil companies like Suncor, provincial courts have ruled in favour of labour concerns in two separate cases over the last year, and against random-drug-and-alcohol testing at the company’s Wood Buffalo operations in Alberta and the use of pre-access testing at its worksite in Sarnia, Ontario.
Christina Hall, partner in Fasken Martineau DuMoulin LLP’s Labour and Employment Group and adjunct professor in Employment Law at the University of Western Ontario in London, speaks with ohs canada about how employers can balance the safety risks associated with workplace impairment and individual privacy rights.
OHS: Under what conditions can employers legally conduct random drug-and-alcohol testing?
CH: That is an excellent general question that you would think would have a straightforward answer, but it does not. The answer will depend on whether the workplace is unionized or not and, to some extent, which jurisdiction’s laws apply to the workplace. In a unionized workplace, employers must consider the application of arbitral case law that has been developed by the courts and arbitrators over the years. In a non-unionized workplace, employers must consider adjudication by human-rights tribunals and courts under human-rights legislation. So the frameworks are fairly different.
Employers need to put a lot of thought into these programs. Most testing programs are only one element of a more comprehensive fitness-for-duty or drug-and-alcohol policy that applies to the workplace. For example, there is usually an education element that would ask employees, for instance, to come forward if they believe they are impaired or taking medication that might impair them. I think the difficulty is that sometimes, employers will attempt to impose a policy in Canada that was developed in another country, or from one Canadian jurisdiction to another, without realizing that the law might not be the same. So the key for an employer, really, is to understand the law that applies to their business and industry in their jurisdiction, and to create a well thought-out policy accordingly.
OHS: What justifications are needed for these testing policies to hold up in court?
CH: Generally speaking, if there is going to be a drug-and-alcohol-testing policy, it should focus on what has traditionally been called in legal cases “safety-sensitive positions” where there is a risk of harm to those doing the job, their co-workers or the public. In the past, I have sometimes seen drug-and-alcohol-testing policies that purport to test all employees regardless of their role or job duties. However, an employer would have a very difficult time doing any kind of testing — much less random-drug-and-alcohol testing — for somebody who is in, for example, an office or clerical position, because that position is not safety sensitive. The focus of testing should be on situations where there is a risk of harm, and the greater the risk of harm, the more you want to be thinking about the various forms of testing.
The forms of testing that are generally less controversial are reasonable-cause testing (when an employee in a safety-sensitive position comes to work and appears to be impaired), post-incident testing (following an accident in the workplace where it is not immediately clear what the cause is), and return-to-work testing (when somebody has been off work in a rehabilitation program and must submit to a drug-and-alcohol test before being allowed to come back to work). When you start talking about things like random, unannounced testing or pre-employment testing, those forms of testing are more controversial.
OHS: Under what circumstances can employers fire employees who are under the influence of drugs or alcohol?
CH: The terminology is really important when we talk about these cases. I like to use the term “impairment”. The term can be used when an employee is not fit to work for any number of reasons, whether that is because of the effects of alcohol, illegal drugs, prescription drugs or fatigue. Generally, if an employer believes an employee to be impaired, the employee is sent off to submit to a drug-and-alcohol test. If the test comes back positive, that is really only step one of the analysis. The employer should not act unilaterally and fire that employee on that basis alone without making further inquiries. If an employer does so, it can certainly be subject to legal action.
Rather, an employer has the duty to first review a positive test. Many employers may go back to an employee to ask if there is a reason for this positive test. Every once in awhile, there is an employee who has a good faith explanation — for example, he or she has been taking some kind of medication and did not realize there was an ingredient in there that could cause impairment. If not, employers will ask an employee to go for a professional assessment by a substance-abuse professional, who is trained to determine whether somebody has an addiction or not.
If the determination is made by the substance-abuse professional that the employee has an addiction, human-rights legislation in every jurisdiction across Canada provides that an addiction is a disability that needs to be accommodated by the employer up to the point of undue hardship. So a termination of employment in the face of an addiction, without assessing accommodation obligations, is likely not an appropriate response. On the other hand, if the substance-abuse professional says this employee is simply a recreational user of drugs or alcohol, human-rights legislation does not protect such casual use. In that circumstance, an employer is free to evaluate the possibility of discipline for that employee, which might include termination of employment.
OHS: What must employers do to satisfy accommodation laws in relation to workers who suffer from addiction?
CH: The legal obligation to accommodate is only triggered if a disability is identified. This does not just apply to an addiction, but to any physical or mental disability that an employee in the workplace may be suffering from. The courts and human-rights tribunals have said that accommodation is an individual analysis and that in each case, an employer must analyze its accommodation obligations with regard to that particular employee, his or her particular duties in the workplace, the particular job requirements and his or her particular limitations.
In some cases, accommodation might look like giving the employee time off work to attend a rehabilitation program. In other cases, it might look like moving a person from a safety-sensitive position to one that is not, or permitting the employee time to attend a day-treatment program. The analysis is done on a case-by-case basis.
How do laws related to workplace drug testing differ from those related to alcohol testing?
CH: For the most part, the laws are generally the same in terms of when it is appropriate to engage in either practice. In some jurisdictions, there is more acceptance of random alcohol testing than of random drug testing. But that difference is not really a function of a difference in the law per se, so much as a difference in what technology can tell us, which leads to a difference in the law.
If somebody has done a Breathalyzer test for the purpose of an alcohol test in the workplace, generally, you can find out right on the spot whether the person sitting in front of you is impaired at that moment. The challenge is that historically — although technology is slowly changing this — drug testing has been conducted by urinalysis. Basically, this form of testing measures substances that a person’s body has already metabolized. It is possible to obtain information that a certain type of drug was consumed, but not necessarily about current impairment.
There are saliva tests on the market now that do not test metabolites, so it is possible to get a better result. The problem with some of those tests is that you have to ship that sample away for processing in a lab before a conclusion can be made. That is still not quite the equivalent of a Breathalyzer test that provides not only an immediate result, but one that measures current impairment.
There are test providers now that are working to scientifically confirm other forms of drug testing that will get you the equivalent of the Breathalyzer. That is why the law has struggled with this issue. If the goal of drug testing is to try to have an impairment-free workplace, how are you achieving that if you are using a testing method that is not measuring current impairment? Given the ways we are seeing technology evolve, I do suspect we will see the law evolve as well, in time.
OHS: How much do provincial drug-and-alcohol-testing laws differ?
CH: They do differ to some degree. Alberta has generally had a more permissive attitude to workplace-drug-and-alcohol testing than Ontario. The human-rights commissions in every province have slightly different takes. For example, the federal human-rights commission, which is the commission to which federal employers are held accountable, generally does not support pre-employment drug-and-alcohol testing, but there are some specific exceptions where the federal commission will support it. In Ontario and some of the other provinces, however, pre-employment drug-and-alcohol testing is generally not accepted, period.
Employers who operate in multiple jurisdictions across Canada need to be aware of these differences and comply with human rights and privacy laws applicable in each jurisdiction. Where you see even more differences is between unionized and non-unionized workplaces. With unionized workplaces, a much greater emphasis is placed on inherent privacy rights of individuals.
OHS: In 2013, the Supreme Court of Canada ruled that mandatory, random alcohol testing of employees in safety-sensitive positions at Irving Pulp and Paper Ltd. was unreasonable. What is the takeaway for employers?
CH: The first key point is that case involved a unionized employer. There are less implications for non-unionized employers. For unionized employers, basically, the decision supported a line of arbitration cases going back a number of years that has said, “If you are going to be doing drug-and-alcohol testing in the workplace, then reasonable-cause testing, post-incident testing and return-to-work testing are generally okay.” To that extent, nothing has changed.
Where I think the Supreme Court has provided more clarity is that if an employer is looking to conduct random alcohol testing outside one of those already permitted areas, it needs to be able to show that it has concerns that are more than just the general concerns about inherent safety risks in the workplace. The employer has to be able to show that there is some kind of enhanced safety risk to the workplace that would justify this privacy-sensitive intrusion upon the employees. So the question for the employer, going past 2013, has been, what kind of enhanced safety risk are we going to have to show?
Employers and employment and health and safety lawyers are all watching to see what will happen with the next cases, to determine what kinds of enhanced safety risks might justify testing outside the traditionally accepted parameters.
This interview has been edited for length and clarity.
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