In 2013, the issue of whether an employer can unilaterally implement random drug testing was addressed by the Supreme Court of Canada. Bottom line: there are very few instances when random drug testing will be permitted.
This blog summarizes a recent arbitration award where a union challenged an employer’s random drug testing policy at a coal mine.
The arbitrator found that anyone working in mine operations, the mine maintenance department, and in the coal plant was involved in a safety-sensitive job.
Further, he found that the work and surroundings involved in all three of these operations required employees to maintain a continuing alertness so that they did not cause an accident that might injure themselves and/or another employee, or were not injured by someone else’s carelessness.
In 2012, the employer unilaterally implemented random drug and alcohol testing that required employees to, among other things, provide breath or urine samples. If there was a positive result then the employee was required to meet with an additional specialist and disclose personal health information.
The issue in random drug and alcohol cases is how to resolve the conflict between an employer’s interest in making their workplaces safe, and an employee’s interest in protecting their privacy.
- Have employees’ privacy rights been infringed and, if so, to what degree;
- If so, is there sufficient or adequate cause to justify the search and seizure and resulting privacy intrusions represented by random testing; and, if so,
- Is random testing a proportionate response to that “demonstrable workplace problem”?
After a 39 day hearing, the arbitrator concluded:
- Random drug and/or alcohol testing is a prima facie privacy violation
- The fact that an employer’s workplace is dangerous does not, in and by itself, establish a legitimate need for random drug and alcohol testing. There was no evidence of a “demonstrated workplace problem” or “a general problem with substance abuse in the workplace.” In this regard, in the five years leading up to the random testing, the number of positive tests were relatively low for post-accident testing, averaging between one and two positive post-incident drug tests per year.
- Neither a positive breathalyzer test at .02% BAC nor a positive urinalysis test for the presence of cannabis or cocaine metabolites establishes that an employee was under the influence of, or impaired by, any of those substances. Such positive tests only establish that the employee has used those substances in the past, not that he was impaired at the time of the test.
The arbitrator also noted that no evidence was led on whether or not there were any less intrusive means of measuring impairment that would be equally as effective such as “computer-assisted employee performance testing” which is more commonly known as “impairment testing.”
Lessons to Be Learned
- It is possible but extraordinarily difficult to justify a random drug and alcohol policy.
- Unionized employees will almost certainly grieve the policy under the applicable collective agreement, and non-unionized employees can file an application under human rights legislation.
- The onus is on the employer to justify the need for the policy.
- The employer must demonstrate an actual problem with substance abuse in the workplace; not a theoretical problem.
- The employer’s testing protocol needs to prove impairment; not use.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]
Some employers have benefitted from COVID and others have not. The federal government has supported the “have not” employers with a 75% wage subsidy. But it is scheduled to come to an end in September. So I have been getting calls from employers who cannot maintain...
An employee with 5 years service is entitled to one week severance pay for each year of service to a maximum of 26 weeks severance pay under the Employment Standards Act (ESA) IF the employer’s payroll exceeds $ 2.5M. In 2014, Ontario’s Superior Court of Justice...
Temporary layoffs deemed not to be termination during the COVID pandemic.