Northern Exposure

Broad Drug Testing Policies Approved by Arbitrator

By Brian P. Smeenk

Drug and alcohol testing has long been a sensitive subject in Canada, especially in safety-sensitive workplaces. A recent 128-page arbitration decision by a leading Canadian arbitrator may have put to rest many of the remaining questions about what kinds of policies will be enforceable in Canada and what they should contain.

As we have reported in earlier articles in Northern Exposure, there are significant differences between Canadian and American law in this area. As one arbitrator has noted, Canadians tend to have a “visceral negative reaction when the state, employers, or anyone in authority dictates to them what they can or cannot do, especially on their personal time …” There has been a reluctance to allow intrusions on individual freedoms and rights unless the necessity is clearly demonstrated.

This has resulted in the case law basically holding that random testing or pre-placement testing for drug and alcohol use could be permitted only where the job in question is clearly a safety-sensitive position and where lack of any influence of drugs or alcohol can be shown to be a bona fide occupational requirement (BFOR).  This was established especially in the leading decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Limited (2000).

The question that a recent case, Mechanical Contractors Assn. of Sarnia and CJA. Local 663, 95 CLAS 242; 2008 CLB 9747, seeks to answer is how far employers can go where no employee has been identified as working in a safety-sensitive job that would support random testing or pre-placement testing under Canadian law.

Facts
The contractors, who belonged to the Mechanical Contractors Association of Sarnia, had developed a thorough set of drug and alcohol policies. Most of the contractors followed the template to varying degrees. Many of these contractors worked in the “Chemical Valley” in and around Sarnia, Ontario, in petrochemical plants. These policies were developed in response to demands by companies like Imperial Oil Limited (the Canadian subsidiary of Exxon). It had issued a directive in 1997 to its contractors that included certain drug and alcohol testing requirements for their workers. These were similar to Imperial’s own policy, which had been the subject of the Entrop case.

A grievance was filed after a union member suffered a minor workplace injury at an Imperial Oil site. With the reason for the injury not being clear, the employer/contractor demanded that the employee submit to a urine test, following the policy. The Plumbers and Pipefitters Union claimed that the contractors’ drug and alcohol policies were unreasonable and violated human rights statutes.

The union alleged that the policies were too broad in asserting that the contractors could insist on testing for “reasonable cause” or following an incident. The union argued that the policies would allow employers to test even after trivial incidents or whenever they felt they had reasonable cause. This, said the union, ran contrary to Entrop and other Canadian decisions that had found that human rights laws limit the permissible use of drug and alcohol testing.

Arbitrator’s conclusions

The arbitrator noted that, even in the face of human rights laws, it is well accepted that the safe operation of an industrial site requires freedom from impairment on the job. This is a BFOR even for those suffering from the now-recognized disabilities of alcohol or drug dependency. But the contentious issue is how an employer can properly assure itself that employees are not working under the influence of drugs or alcohol. In Canada, random or pre-placement testing will not generally be one of the tools allowed.

The arbitrator set out the following principles in assessing what employers can and can’t do in such policies. They provide very useful guidelines for Canadian employers who wish to be able to enforce substance-testing policies:

  1. When dealing with workers in an industrial site, in this case construction workers in a petrochemical plant, those workers may be subject to “reasonable cause” and “post-incident” testing. This is true even if the worker’s own job is not particularly “safety-sensitive.”
  2. Testing can properly be used to help confirm or eliminate alcohol or drug consumption as a contributing factor where the employer has reasonable cause to suspect impairment. This may arise from immediate observations concerning the employee’s behavior or performance.
  3. Likewise it is acceptable after an incident or accident, where there is cause to suspect alcohol or drug use, to require testing. The suspicion may arise by reason of the incident itself, from observations made, or from the surrounding circumstances. In such cases the testing should be done as soon as possible.
  4. The policies should not be administered so that they in effect become random or regular testing procedures. Managers must exercise some level of discretion. Testing should not be required for all workplace accidents or incidents, regardless of how trivial the incident or other surrounding circumstances. Testing should be seen as an investigative tool to be used alongside management’s observations.
  5. Proper policies should extend some latitude to managers in considering the extent of the discretion to be applied. This necessarily will involve a certain degree of vagueness in defining what kind of triggering events will provide “reasonable cause” or be a sufficient incident to warrant testing. This needs to be decided on a case-by-case basis.
  6. The policies – and management – should recognize that the “pursuit of reasonable cause” requires “actual, supportable observations which realistically present some suspicion of working while under the influence.”
  7. The employee’s own explanation should at least be considered when deciding whether to test.
  8. Automatic termination penalties for testing positive are not generally supportable. However this does not necessarily mean that termination will not be appropriate, depending on the circumstances.