In Canada, the criteria for allowing random drug or alcohol testing in the workplace are very limited because these tests are regarded by our courts as an invasion of an employee’s privacy. But what about requiring targeted testing of an employee suffering from an addiction?
In the recent Bell Canada decision, an arbitration tribunal in Quebec ruled that an employer’s requirement that an employee take drug tests and attend detoxification treatment was reasonable and was not an invasion of his privacy or damaging to his reputation and his integrity.
The complainant was a customer service representative whose performance was satisfactory despite some attendance issues.
In fall 2011, during meetings with his superior, the complainant made some worrisome comments. Specifically, after having stated that he had “lost control of his life” and “that he didn’t know what his problem was, that he was always getting into trouble, and that he wasn’t normal,” the complainant admitted that he was having debt problems.
Upon leaving work, he threatened to kill himself. Fearing that he would follow through on this threat, his superior decided to immediately put him in contact with the employee assistance program and to dispatch the police to his home. The complainant was then driven to the hospital, where the doctor prescribed a seven-day leave from work.
The next day, the doctor responsible for disability management at the employer concluded that the complainant showed signs of gambling addiction and that he should be seen by a psychiatrist specializing in addiction to determine the exact nature of the pathology as well as the appropriate treatment.
The complainant met with the psychiatrist a few weeks later. The psychiatrist’s report concluded that the complainant had a pathological gambling problem and a possible addiction to cocaine, since a urine test indicated that he had used cocaine within five days preceding the test.
The addiction expert also concluded that the complainant was unfit to work. He specified that the complainant should return to work only if he agreed to attend detoxification treatment and abstain from using drugs or alcohol for at least one month. The complainant admitted having used cocaine but said he used it only occasionally. He disputed the drug addiction diagnosis.
Following the first report and the complainant’s denial of any alcohol or drug problem, the psychiatrist thought it would be preferable to have the complainant undergo a second test to obtain a more accurate diagnosis. However, the complainant refused to go to the clinic, believing that the test constituted an invasion of his privacy, would be damaging to his reputation and his integrity, and would thus violate his fundamental rights.
In light of the complainant’s refusal to take a second drug test and to attend detoxification treatment, the employer informed him that it would stop paying him disability benefits. Approximately one and a half months later, after the complainant was evicted from his apartment, the employer agreed to take him back to give him a second chance.
A few days after returning to work, the complainant was absent once again, for about six months, because of depression. When he returned in August 2012, the attendance problem persisted, and the employer suspended him twice in succession before finally terminating his employment in November 2012.
The complainant filed two grievances, including one disputing the employer’s requirement in fall 2011 that he take drug tests and undergo detoxification treatment. He made his grievance on the grounds that those requirements were an invasion of his privacy and would be damaging to his reputation and his integrity.
The complainant alleged that the employer was “fishing” by forcing him to undergo drug testing since, according to him, it had no bearing on his ability to return to work and since this hypothetical addiction did not pose a risk to his health or to that of his coworkers.
On the merits, the arbitrator concluded that the employer’s decision to have the complainant examined by an addiction specialist was reasonable; the specialist could then recommend a treatment and decide whether the complainant was fit to return to work.
The psychiatrist also could ask the complainant to take the first drug test because of the complainant’s condition and his statements to the effect that he didn’t know the cause of his problem. As this test alone was insufficient to determine whether the complainant did in fact have an addiction problem, the psychiatrist also could order a second test to confirm his suspicions, and the complainant could not refuse to take the test without consequence.
In those circumstances, the arbitrator opined that it was up to the psychiatrist to determine the necessary and appropriate measures to make a proper diagnosis and to prescribe the appropriate treatment. Consequently, requiring drug testing and a detoxification treatment was not considered a violation of the complainant’s fundamental rights.
Furthermore, the arbitrator mentioned that addiction problems frequently lead to additional problems (suicide attempts, etc.) and that it is the employer’s duty to determine whether the employee is able to perform his job properly. It was also the employer’s duty to avoid the problems that a cocaine addiction could cause in the workplace, such as impulsiveness and aggression, which are incompatible with the job of a customer service representative.
According to the arbitrator, Bell Canada acted appropriately and in the best interest of the complainant by following the recommendations of an expert. Consequently, as long as the complainant wanted to maintain his employment relationship, he was required to comply with the conditions that were imposed.
Lessons for employers in Canada
Managing cases of addiction in the workplace is a delicate matter and must be done on a case-by-case basis. However, when an employer requires in good faith that an employee take certain tests and meet certain conditions to return to work on the recommendation of an expert, an employee will have difficulty claiming that his rights to privacy, dignity, and integrity are being violated.