Drug & Alcohol Testing - The State of the Law

Over the last couple of years, the law on workplace drug and alcohol testing has become significantly clearer - to the point where it's arguable that there is little ambiguity left.  It is widely accepted that alcohol and drug dependency are 'disabilities' protected by human rights legislation, and that drug testing tends to impose differential treatment on those who suffer from these conditions or presupposes that those who test positive are "addicts" and more likely to be impaired in the workplace.  In the absence of evidence to establish that testing (to ensure freedom of impairment) is a bona fide occupational requirement (i.e., rationally connected to preventing impairment, adopted in good faith, reasonably necessary to achieve that end, and that no other reasonable accommodation of disabled employees is possible, without incurring undue hardship), alcohol and drug testing will be found to be discriminatory.

So what are employers allowed to do in the name of workplace health and safety?  What is out of bounds?  Here's an overview of how the law has evolved, and where employers and employees stand following the most recent pronouncements of the courts and arbitrators.

Entrop v. Imperial Oil

The debate about the competing interests of employers (maintaining a safe workplace) and employees (protecting privacy and dignity) really got started with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil ("Entrop").  In that case, the employee had disclosed a past substance abuse problem, in line with the employer's alcohol and drug policy, and was transferred out of a safety-sensitive position as a result.  In order to be reinstated to his former job, the employee was required to complete a company-approved two-year rehabilitation program followed by five years of abstinence and to sign an undertaking to abide by specified post-reinstatement controls (such as unannounced testing).  The policy also provided for random testing for all employees in safety-sensitive roles, providing for termination for a failed test.  The employee complained to the Ontario Human Rights Commission, and his complaint was upheld by a Board of Inquiry.

On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the Human Rights Code.  The Court went on to find that testing was rationally connected to the legitimate goal of preventing potentially "catastrophic" incidents at an oil refinery, which is an inherently safety-sensitive workplace.  However, drug testing (at the time) did not establish "present impairment", and therefore could not establish that an employee's condition, following a positive test, posed an actual danger.  While alcohol testing could establish impairment, it could not be justified unless the sanction imposed by the employer was tailored to the individual's circumstances and was supportive of accommodating his or her disability.  The Court of Appeal agreed with the Board of Inquiry that the provisions on disclosure, reassignment and reinstatement also violated the Human Rights Code, in that the employer did not establish that these rules were reasonably necessary to ensure that employees were not impaired in the workplace. The mandatory disclosure of a past substance abuse problem, no matter how long ago, was unreasonable, particularly once an employee was no more at risk of relapse than a member of the general population. Requiring that an employee be reassigned out of a safety-sensitive position once they had disclosed a past substance abuse problem was also not reasonable because it failed to offer any accommodation to the employee who had disclosed a disability.  The obligations that the policy imposed post-reinstatement were overly broad and unnecessarily rigorous.  The Court, however, found that reasonable cause and post-incident testing were defensible, provided they were part of a broader assessment of impairment by alcohol and drugs in the workplace.

Since the Entrop decision, there has been a vast amount of litigation on the subject of whether an employer can legitimately test employees for impairment by alcohol or drugs.  Here's a summary of where the law currently stands in Ontario:

Random Testing

Following the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), it is now accepted that a unionized employer cannot justify the random testing of employees in safety-sensitive positions, unless the employer can establish that there is an actual workplace problem with drug and alcohol impairment which threatens health and safety. On the facts, the employer could only point to eight (8) safety incidents over a 15-year period that were caused or attributable to drug or alcohol impairment, so the employer was unable to establish that the balance of interests favoured intruding upon employee's autonomy by imposing random, unannounced testing.

 

However, in the non-union setting, employers may have slightly more leeway.  In Irving, the SCC expressly distinguished the Entrop decision, as non-union employers are not subject to the same managerial fetters as they are under a collective agreement.  It remains to be seen whether the analysis in Irving will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.

Pre-Access Testing

In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:   

... such testing will probably have a meaningful ameliorating effect on an actual substance abuse problem at that work site, and so long as such pre-access testing is part of a broader alcohol and drug policy which includes an individualized approach to dealing with employee alcohol and drug issues which is consistent with the Ontario Human Rights Code. 

In short, unless the employer can establish both an actual workplace problem with alcohol or drugs and the availability of accommodation for employees who test positive, pre-access testing will not be reasonable in unionized workplaces.  Whether pre-access testing is permissible in non-union settings (following Entrop) remains to be conclusively determined.

For Cause, Post-Incident and Testing Following Return from Treatment

Following Entrop, there has been little argument about an employer's right to perform drug and alcohol testing where there is reasonable cause to suspect impairment (e.g., where an employee is behaving in a manner that raises a suspicion of substance abuse), or following an incident or near-miss in the workplace.  In order to qualify, the employee must be in a safety-sensitive position, and there must be objective reasons to consider drug or alcohol impairment as a potential cause or contributor to the employee's behaviour or performance.  Likewise, when an employee in a safety-sensitive job has disclosed an addiction and has sought treatment, an employer has a right to require testing for a reasonable period of time following the employee's return to work to monitor compliance with the employee's rehabilitation program.  Of course, the response to a positive test in any of these circumstances must be tailored to the employee's personal circumstances and provide the potential for accommodation of a disability, but it is otherwise permissible.

The East-West Divide

Ontario employer may have heard of more lenient decisions emanating from the courts of Alberta (most notably the 2007 decision of the Alberta Court of Appeal in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, leave to appeal to the Supreme Court of Canada denied).  However, don't be confused.  As recognized by Arbitrator Surdykowski in the Mechanical Contractors' Association Sarnia decision (above), there is truly a divide in the approach as between Alberta and all points east.  In Ontario, the reasons of the Alberta courts have not found favour, and the approach continues to be much more restrictive.  Unless an employer can point to safety-sensitive positions (or a workplace that is inherently dangerous) and evidence of a workplace 'problem' related to alcohol or drug impairment (i.e., erratic behaviour, an accident or near miss, an employee returning from drug or alcohol rehabilitation, or a proven substance abuse problem in the workplace generally), testing under a policy will be a tough sell.  Most adjudicators in Ontario will find in these situations that an employee's interest in personal dignity, autonomy and privacy will trump the employer's concerns for workplace health and safety, no matter how sincerely held those beliefs may be.

Do you have questions about how to formulate or apply a drug and alcohol policy in your workplace?  Need advice on what to do in the event of a positive drug or alcohol test?  Contact Lance Ceaser for expert guidance.




 

Did you know...?

... Telling an employee who has given notice of resignation that you no longer require their services and they can leave immediately can convert that resignation into a termination without notice?  If the employee has provided 'reasonable notice' of resignation, but the employer decides to end the relationship before the expiry of that notice, it is the employer who has terminated the contract.  In these circumstances, the employee is entitled to payment in lieu of reasonable notice. 

This concept was illustrated in a recent decision out of the Supreme Court of Canada, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc. The Supreme Court determined that it is a "fiction" for an employer to claim that it has 'renounced' (or 'waived') the employee's notice of resignation, when in fact it has taken unilateral action to bring the contract to an immediate end. While the Asphalte Desjardins case was decided under the Quebec Civil Code, similar rules are applied by the common law courts.  See for example, the decision in Compton v. Partners in Motion Pictures Inc., a 2005 decision of the Saskatchewan Court of Queen's Bench. 

Once an employee provides notice of resignation, the employer can accept it or seek to negotiate a longer or shorter period of notice, but cannot dictate the effective date of resignation.  If the employee is to be sent home prior to the effective date of resignation, the employer should make clear that their active service will not be required, but that the employee should make him or herself available during the notice period to facilitate the transition of duties, projects, etc.  Full salary and benefits must be maintained for the entirety of the notice period, as well.

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... That the new Ontario Budget Bill was accompanied by the Building Opportunity and Securing Our Future Act (Budget Measures, 2014) ("Bill 14") which, among other things, amends the Insurance Act to require employers who provide Long-Term Disability ("LTD") benefits to do so through "a contract of insurance undertaken by a licensed insurer"?  No longer can such benefits be self-insured. Health benefits providers have been pressing for this change for some time, as it provides greater security for those receiving benefits coverage.  This measure brings provincially-regulated employers in Ontario into line with federal employers, who have been subject to a similar requirement since 2012. Bill 14 received Royal Assent on July 24, 2014, but has yet to be proclaimed.  Stay tuned...

 

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... That an employer's duty to accommodate an employee suffering from drug addiction or alcoholism may not be triggered until the employee fully discloses the existence of the disability?  In a handful of recent decisions, adjudicators have been reluctant to overturn employer decisions to terminate the employment relationship where an employee engages in serious misconduct, even where the behaviour has its roots in addiction or alcoholism.

In Bish v. Elk Valley Coal Corporation, the employer had a drug and alcohol policy which offered amnesty to employees who disclosed an addiction, in exchange for their undertaking to go to rehab.  The employee was found to have cocaine in his system when he was tested after an accident on the job.  He had never disclosed an addiction prior to the accident, although he had attended a training session on the drug and alcohol policy.  The Alberta Human Rights Commission dismissed his complaint, finding that the employee was terminated not because of his addiction, but for his non-compliance with the policy, including his failure to reveal his condition and seek treatment. The Commission's decision that there was no prima facie discrimination was upheld by the Alberta Court of Queen's Bench on appeal.

In Huffman v. Mitchell Plastics, the Human Rights Tribunal of Ontario reached a similar conclusion.  Huffman was terminated by the company following grossly inappropriate behaviour at the office Christmas Party.  The employee was drunk, and belatedly claimed that he suffered from alcoholism, which he had 'disclosed' to the employer when he inquired about benefit coverage for the medication "Champix" (commonly used to assist smokers to quit smoking).  The Tribunal found that the Applicant had not properly disclosed his disability or provided sufficient information from which the employer ought to have known that he was an alcoholic.  Accordingly, the employer could not be expected to recognize that it had a duty to accommodate the employee at the point when it terminated him for his conduct.

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Are you struggling to manage an employee's resignation?  Have questions about accommodating an addicted employee?  Feel free to contact Lance Ceaser to obtain advice and guidance.