The Latest on the Legality of Random Drug & Alcohol Testing
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]
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
Tags: Barrie Employment Lawyer Doing Business In Ontario Doug MacLeod Drug And Alcohol Testing Employment Law Employment Lawyers Barrie Employment Lawyers Toronto Employment Standards Occupational Health And Safety Right To Privacy Toronto Employment Lawyer Workplace Random Drug And Alcohol Testing Workplace Safety
Doug’s Top 5 Employment Law Stories of 2022
Here are my top 5 employment law stories for 2022: 1. COVID 19 - Temporary Layoffs This issue remains my number one story because this issue impacts so many court cases. Some judges have concluded that a temporary layoff set out in the Infectious Disease Emergency...
Reducing Litigation Risk
In a recent case, Pohl v. Hudson’s Bay Company, 2022 ONSC 5230 (CanLII),an employer was ordered to pay a long service employee the equivalent of about 3 years pay and contribute about $ 35 000 to his legal fees. Although this was a without cause termination case, it...
Employment Law Update: Electronic Monitoring Policy
A new amendment to the Employment Standards Act requires employers with 25 or more employees on January 1st of a given year to put in place a written policy regarding any electronic monitoring processes they use to monitor employees. The deadline for 2022 is October...