By Graeme McFarlane

To test or not to test?

With recent changes to the Workers Compensation regime, the risks for employers have greatly increased.  Jail is now a possibility for significant infractions.  The legal and moral need to ensure a safe workplace is as strong now as it has ever been.

A common question arises frequently.  How do we ensure that our employees are protected from the risks associated with other employees attending work under the influence of drugs or alcohol?  In the United States, employers have addressed this challenge by implementing a system that utilizes random drug and alcohol testing.  Many U.S. companies with operations in Canada try to implement similar policies in this country.  However, the law is becoming increasingly clear that a blanket policy requiring all employees to submit to random drug and/or alcohol testing will be struck down.

Imperial Oil’s policies have been the subject of examination by both arbitrators and courts.  In the early 1990’s, an employee challenged a section of the policy that required random drug and alcohol testing.  Ultimately, the Ontario Court of Appeal held that breathalyzer testing for employees who held safety sensitive positions was permitted under the Ontario Human Rights Code.  However, the same court struck down drug testing by way of urinalysis because that technology could not establish that an employee was impaired while working.

After this decision, Imperial Oil investigated ways to test for current drug impairment.  It decided to utilize saliva testing as a means to test for current marijuana impairment, and random drug testing was resumed for those employees in safety sensitive positions.  Imperial Oil believed expert reports that saliva testing could indeed test for current impairment.  However, the Union challenged the resumption of the testing.

The arbitration panel ruled that post incident drug testing was permissible where the company had “cause” do to so.  However, random drug testing was not permitted except as part of rehabilitation program for an employee with a drug or alcohol problem.  The Ontario Court of Appeal confirmed the arbitration decision and in doing so cast doubt on whether evidence gathered by way of saliva testing could actually prove current impairment.

Alberta decision makers have taken a different approach.  Alberta courts have accepted that substance abuse is a serious problem in the energy sector, particularly on the oil patch.  Accordingly, it is not unreasonable in certain circumstances to require employees to submit to random drug or alcohol tests.  In making these decisions, the courts expressly noted that this approach differed than that applied in Ontario. Interestingly, the Supreme Court of Canada did not review this case to sort out this difference of opinion.

As a result of these two different lines of authority, there is some uncertainty as to which will be applied in British Columbia.  Under the Alberta approach, practicality and group safety are emphasized, while Ontario decision makers seem to focus more on individual privacy rights.  Given the conservative nature of British Columbia arbitrators and its Human Rights Tribunal, it is more likely that the Ontario analytical approach will prevail.  This means that uniform random drug testing will likely not be permitted.  However, for cause, post incident testing will likely be allowed as will random testing linked to a rehabilitation plan.

The landscape may change in the future.  If and when a non-invasive testing procedure is developed for current drug impairment, decision makers may find that such testing is reasonable for employees in safety sensitive positions.  When this occurs, it will be difficult for the courts to ignore the importance of group safety.  The Alberta focus on practicality may very well prevail.  Time will tell.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk: Spring 2010)