CURRENT LEGAL CONTEXT: EMPLOYEE TESTING
BARBARA BUTLER & ASSOCIATES INC.
(The information in this document is not a legal opinion; it is provided for information only and should not be relied on as legal advice. Wherever available sites for the decisions are provided, although not all arbitration awards are posted)
1. Employer Obligations re. Due Diligence
"The value of human rights legislation is great and the courts accord more than usual deference to decisions of human rights tribunals. Human rights legislation, however, fits within the entire legal framework within which enterprises must function. That framework includes other standards that also reflect deep values of the community such as those established by workers' compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence, for example the standard that applies to Oak Bay Marine Ltd. for its clients. Even as full adherence must be given to the standards of human rights, a human rights tribunal must be mindful of the fuller legal framework regulating an enterprise when it assesses the occupational requirements asserted by that enterprise, and decide in a fashion harmonious with that framework in order not to force non-compliance with some legal obligations in exchange for compliance with the human rights legislation."
The full decision is available at:
2. Human Rights Context: Supreme Court Decision
British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 http://www.canlii.org/en/ca/scc/doc/1999/1999canlii652/1999canlii652.html
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 http://www.canlii.org/en/ca/scc/doc/1999/1999canlii646/1999canlii646.html
3. Ontario Court of Appeal: Entrop and Imperial Oil
4. Alberta Court of Appeal: Luka/ Alberta Human Rights and Citizenship Commission and Lockerby & Hole/ Syncrude
Luka was a long term employee of Lockerbie & Hole (L & H) and was transferred to the Syncrude site as part of a contract the company had at the site under Kellogg Brown and Root. A condition of site access is passing a drug test, and Luka failed the test. A human rights panel found that even through he was an employee of L & H, they reasoned that the concept of "employment" under the Act can cover other relationships involving utilization of services, and concluded Syncrude was also an employer, as they set the safety standards and site access testing requirement. They also said there was no discrimination as Luka did not have a dependency nor was he perceived to have one. But the implication was that if he had a dependency, Syncrude would have had a duty to accommodate.
L & H appealed on the finding Suncrude was an employer and the Court of Queen's Bench concluded the definition of employer was not wide enough to cover the relationship between the owner of an industrial site and the employees of an arm's length contractor working on the site. The Human Rights Commission appealed to the Alberta Court of Appeal. There is no definition of employer under the Act, but it does say no employer shall discriminate against any person with regard to employment or any term or condition of employment on any of the prohibited grounds. The appeal was dismissed, concluding Luka was not co-employed by Syncrude, and therefore the owner site, even though it set safety policies did not have a duty to accommodate a contract worker in the way a direct employer would.
Lockerby & Hole Industrial Inc. v Alberta Human Rights and Citizenship (January 11, 2011) http://www.canlii.org/en/ab/abca/doc/2011/2011abca3/2011abca3.html
5. Federal Human Rights Tribunal Decision: Autocar Connaisseur
This was the first Tribunal ruling since the TD Bank case several years ago, and focused on a policy in a safety-sensitive industry - motor coach. The Commission's former policy was in force at the time of Mr. Milazzo's dismissal for failing a "pre-employment" drug test to qualify for U.S. work. He had previously worked for the company and in fact had crossed the border, but was not subject to the random testing program.
The Commission requested that the Tribunal refer to their new policy, and Coach Canada (Autocar's parent company) requested that, in that case, the Tribunal refer to their new, more comprehensive policy as well.
The Coach Canada policy which was before the Tribunal covered all employees, and placed all drivers and mechanics (who all have to road test the vehicles) in the safety-sensitive category whether they operated into the U.S. or not. This includes transit and school bus drivers. The policy requires reasonable cause and post incident testing for all employees; applicants to a safety-sensitive position must pass a drug test and are subsequently subject to alcohol and drug testing on a random basis.
Mr. Milazzo's complaint before the Tribunal was that he had been discriminated against because the company perceived he was dependent when they terminated his employment after a positive drug test result. The Tribunal concluded Mr. Milazzo did not meet his burden to establish that he suffered from a disability, or that he was perceived to be disabled by Autocar, and his section 7 complaint was dismissed.
Regarding the company policy before the Tribunal at the time, the Tribunal ruled that Autocar's drug testing policy discriminates against employees who are drug dependent since anyone who tests positive is either not hired, or their employment is terminated, and some of those people will have a substance-related disability. They looked at whether the requirement not to have drug metabolites in one's system is a bona fide occupational requirement for bus drivers in light of the Supreme Court's three tests and concluded:
The company revised the policy to allow for a Substance Abuse Professional assessment of anyone in violation of the policy, and to allow for accommodation of an individual in this circumstance who was found to have a problem. Follow-up testing is a condition of continued employment for those who violate the company policy.
The full decision is available at:
Salvatore Milazzo v. Autocar Connaisseur Inc. and Motor Coach Canada 2003 CHRT 37 http://www.canlii.org/en/ca/chrt/doc/2003/2003chrt37/2003chrt37.html
On January 28, 2005 the Tribunal issued a subsequent decision confirming:
Salvatore Milazzo v. Autocar Connaisseur Inc. and Motor Coach Canada 2005 CHRT 5 http://www.canlii.org/en/ca/chrt/doc/2005/2005chrt5/2005chrt5.html
6. Other Human Rights Decisions
Two decisions in Alberta provide further guidance on testing applicability at the provincial level.
Chiasson v. Kellogg, Brown and Root: In the first human rights decision to reference the Milazzo ruling, KBR's decision to withdraw an offer of employment to an applicant for a high risk position on a client's site was upheld. The individual tested positive and had started working, but was in the probation period and the condition of hire included passing a medical and a drug test. The individual said he did not have a problem, and there was no evidence of perceived discrimination. He admitted to being a recreational user. The Panel looked at the situation in light of the Supreme Court tests for a bfor. Although the company's actions were supported, the Panel ruled that had the applicant established evidence of a disability, real or perceived, the withdrawal of an employment offer would have been discriminatory and the third element of Meoirin would not have been totally met. (June 2005) The ruling can be reviewed at:
John Chiasson v. Kellogg, Brown & Root (Canada) Company (Halliburton Group Canada Inc.) http://www.canlii.org/en/ab/abhrc/doc/2005/2005ahrc7/2005ahrc7.html
Court of Queen's Bench Ruling: This was appealed to the Court of Queen's Bench of Alberta which reversed the ruling, stating that there are flaws in pre-employment testing deriving from "the fact that a positive test does not show future impairment, or even likely future impairment on the job, yet the applicant who tests positive is not hired." Further problems with the company program were that all applicants were subject to testing, not just those applying for safety-sensitive positions, and that the testing was not part of a larger process of assessment of alcohol or drug abuse (as set out in the Entrop decision). The Court said prohibiting impairment at work is a valid and compelling safety and security concern, and there is a "legitimate interest in prohibiting drug use at work because it is dangerous and exposes employees to increased risk of accident or injury." But there was no evidence accepted that pre-employment testing improved workplace safety.
The company was found to be contravening the Act, and directed to "revise its policy to eliminate pre-employment drug testing, or in the alternative, if pre-employment drug testing is found to be reasonably necessary for deterring impairment on the job," the company is ordered to "offer a process of assessment or accommodation to individuals failing a pre-employment drug test." The Court noted these directions are specific to the KBR Policy and left open the question of whether other policies would meet the bfor standard.
The Court of Queen's Bench decision can be found at: http://www.canlii.org/en/ab/abqb/doc/2006/2006abqb302/2006abqb302.html
Alberta Court of Appeal Review: This decision was appealed to the Alberta Court of Appeal which, in a December 2007 ruling, unanimously upheld the original decision made by the Human Rights Hearing Panel. Discrimination based on perception of a disability can be a violation of human rights legislation, but because there was no perception by the employer that Mr. Chiasson was drug-addicted, there was no basis to assert discrimination on the basis of a perceived disability. In addition, in looking at operating environment of the company, the Court acknowledged the importance of safety in dangerous work environments, and observed that "Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic." Finally, the Court noted its ruling may not be consistent with the Ontario Court of Appeal in Entrop and Imperial Oil Ltd, and declined to follow Entrop if that was the case.
The Court referred to evidence from the first hearing, which showed that the effects of cannabis use can sometimes linger for several days, potentially presenting a safety risk in an already high risk operating environment. The Court noted a clear connection between the policy and its purpose (safety) as it applied to recreational users of marijuana.
The Court did not rule on the broader issues around accommodation of an applicant with a dependency, and narrowed it's ruling to the specific facts of Mr. Chiasson's situation - that he was a recreational user and did not have a drug dependency. Therefore, if the job applicant tests positive and has an alcohol or drug dependency (a disability) there may still be a duty to accommodate, although direction on the employer's specific obligations to an applicant in this situation has not yet been provided in any of the cases.
The full decision can be viewed at http://www.canlii.org/en/ab/abca/doc/2007/2007abca426/2007abca426.html
Supreme Court: The Alberta Human Rights and Citizenship Commission sought leave to appeal this decision to the Supreme Court of Canada. The Court dismissed the leave to appeal in the spring of 2008. Reasons for these decisions are never provided. As such the Court of Appeal ruling stands in this case.
Halter and Ceda-Reactor Ltd.: This decision drew on the Supreme Court bfor tests, as well as the Entrop and Milazzo rulings. Halter worked in a safety-sensitive position on a client's site in the oil sands. The company policy includes testing, but random testing is only for cross-border drivers. On the basis of safety concerns and indications a number of employees were using drugs and alcohol on site, a decision was made to test an entire work team for "reasonable suspicion". Half tested positive, were given two week suspensions and offered assistance if they had a problem. They were retested and only Halter tested positive again. Offered an opportunity to take another test at his expense, he declined and was terminated. The Panel found insufficient emphasis was put on the policy at time of hiring, but a signed acknowledgement form confirmed he knew there was one. It was established he was a casual user and although there was no evidence Ceda had assessed any need for accommodation, neither had Halter established he had a problem, therefore, he did not qualify for protection under the Act.
The testing did not meet the reasonable cause standard, and thus the blanket random test indicated all members of the crew were perceived to be substance abusers. Halter was discriminated against on the basis of a perceived disability, the testing was discriminatory, and their program did not have the range of components needed to meet requirements set in Entrop. The company did not meet the court tests: introducing a policy solely because others in the industry were doing this, and because a client required it was not sufficient. Further there should have been a written record he had been offered assistance, and he should have been accommodated in a non-sensitive position until he had a negative test; Ceda is a large company and did not accommodate to the point of undue hardship. The decision can be viewed at:
Complete decision: http://www.canlii.org/en/ab/abhrc/doc/2005/2005ahrc8/2005ahrc8.html
7. Arbitration Trends
The Court of Queens Bench decision can be viewed at http://www.canlii.org/en/ab/abqb/doc/2007/2007abqb721/2007abqb721.html
In March 2009, the Alberta Court of Appeal disagreed. The 2001 "Canadian Model" was adopted in the construction trades collective agreements as the basis for workplace testing programs. The question was whether the 2001 "Model" adopted by the CA's contemplated pre-site access testing of existing employees. They concluded it did not; there was a mistaken view that pre-site access testing was included as "a condition of employment" in the guideline; if it was, it would have been specifically listed as pre-employment testing was listed. The Court differentiated between site access testing in general as opposed to testing of employees already on the site, and concluded this was not upheld in the context of the collective agreements and the wording of the 2001 "Model" that each had accepted. The Court's decision can be viewed at:
Imperial Oil - Random Drug Testing: A recent arbitration decision examined random drug testing in a unionized setting and concluded the issues were distinct from those in a human rights setting. In Imperial Oil Ltd. (Nanticoke Refinery) and CEP (December 2006), the arbitrator confirmed a Canadian ‘model' has developed regarding when testing is acceptable in a unionized setting and concluded random drug testing, even when using a methodology indicative of impairment (which was oral fluid testing), was not acceptable in the context of the "fairness and dignity" provisions of that particular collective agreement. Random alcohol testing was not before the arbitration panel for consideration. However a subsequent ruling by the same arbitrator in Superior Propane Inc. and CAW (January 2007) struck down random alcohol testing in a unionized workplace for the same reasons. The arbitrator confirmed his earlier ruling that testing in all other circumstances noted above was found to be acceptable. Two additional rulings reviewing comprehensive policies also upheld the requirement to pass a test as a condition of qualification to a safety- or risk-sensitive position.
This decision was appealed to the Divisional Court in Ontario. In January 2008 the Court upheld the arbitrator's decision. The case was appealed to the Ontario Court of Appeal, which heard arguments in February 2009.
In their May 22, 2009 ruling, the Court focused on the wording of the collective agreement at the Nanticoke site, and concluded that it was reasonable for the board of arbitration to rule that Imperial Oil's random testing program violated specific terms of the agreement. The focus of the case was not on the Human Rights Code, which was the subject of the earlier Entrop ruling. For a number of reasons, the Court concluded Imperial's random drug testing program, absent reasonable cause, offended specific wording in the agreement regarding "respect and dignity". The Court also agreed with a number of key findings of the arbitrator, including the fact that current technology for oral fluid testing would not allow for an immediate test result as would be found using a breath analyzer. For total accuracy, the oral fluid sample must be analyzed in a laboratory, and the results of that analysis may not be available for a few days.
The Court did not address random alcohol testing, referring back to the earlier Entrop award which upheld it in a safety-sensitive workplace. The Court did acknowledge the arbitrator's finding that upheld the "for cause" and "post incident" testing provisions of the policy as well as unannounced testing when it is part of a continuing contract of employment, and the rehabilitation of an employee clearly identified as having a problem with alcohol or drug use.
Some law firms have issued statements suggesting this award would make it difficult to implement random drug testing policies in unionized workplaces in Ontario, except in limited situations (e.g. a significant drug culture at a specific workplace). Others have suggested this ruling is very specific to the provisions of this particular collective agreement. The ruling was not appealed to the Supreme Court.
The Complete Ruling: http://www.canlii.org/en/on/onca/doc/2009/2009onca420/2009onca420.html
Pearson Airport - Random Testing: In June, 2007 a comprehensive ruling was issued on the alcohol and drug policy at the Greater Toronto Airports Authority (GTAA - Toronto Pearson Airport) and the Public Service Alliance of Canada. The primary challenge was against the testing component of the policy. The establishment of safety-sensitive positions at the airport was upheld, as was testing in a post incident and reasonable cause situation for these positions. Testing was also upheld as a condition of return to work after treatment, provided the union is involved. It was also upheld as a condition of return to work after a violation when appropriate and negotiated between parties; just cause would be needed for termination for failure to meet the provisions of the agreement. Likewise discipline for refusal to be tested is justified subject to the just cause requirement.
The arbitrator acknowledged having no jurisdiction regarding applicant testing, but did not uphold testing as a condition of transfer into a safety-sensitive position unless the offer was not automatically withdrawn for failure. Consistent with the Court of Appeal ruling in Entrop, random alcohol testing was upheld for safety-sensitive positions as the GTAA had provided evidence of a problem. Random drug testing was not upheld primarily for the same reasons set out in the Entrop decision (inability to connect the test result to impairment at the time the sample was taken.) Other aspects of the policy were either upheld or not challenged. In particular, the employer's right to confirm need for modified duties due to medication use was upheld.
PetroCanada - Random Alcohol Testing: In August 2009 an arbitration ruling was issued in a case where the Communication, Energy and Paper Workers challenged the introduction of random alcohol testing for commercial motor vehicle drivers operating in Ontario. The arbitrator noted although there had been incidents involving drivers related to alcohol at one of the other company locations, there had not been any alcohol related incidents involving drivers at the terminal represented by this local. He concluded the introduction of random alcohol testing was unreasonable and unjustified, and violates the management rights provisions of the collective agreement. The findings of the arbitrator in the Imperial Oil Nanticoke hearing were quoted extensively in the decision.
Goodyear Canada - Random Testing: In December 2007 the Quebec Court of Appeal ruled on an arbitration case between the Communications, Energy and Paperworkers and Goodyear Canada Inc. The grievance had been against the company's alcohol and drug policy and in particular the testing component. The Court specifically looked at the random testing requirements, in which individuals in safety-sensitive positions would be randomly selected, but where there would still need to be reasonable cause to believe someone was under the influence of alcohol or other drugs before testing could take place. The judge quoted from the Imperial Oil ruling (December 2006) and concluded that testing in this circumstance was contrary to the Quebec Charter of Human Rights and Liberties.
Irving Pulp and Paper Limited - Random Alcohol Testing: In November 2009 an arbitration ruling was issued in a case where the Communications, Energy and Paper Workers Union challenged the introduction of random alcohol testing for people holding safety-sensitive positions at the kraft paper mill in Saint John, New Brunswick. The broader company policy is similar in other Irving operations, and similar to the programs at Imperial Oil, Pearson Airport and PetroCanada, having testing in a number of "investigative" circumstances.
The arbitrator drew extensively from the previous rulings, and concluded that the mill, in normal operation, is a dangerous work environment. However, it does not have the same dangers poised by a chemical plant or other "ultra-dangerous" operations; there was also no evidence entered of a significant problem with alcohol at the facility. He concluded that there is "..a very low incremental risk of safety concerns based on alcohol-related impaired performance of job tasks at the site." He also concluded that the low annual selection rate (10%) would seldom if ever identify an employee with a blood alcohol concentration over the .04% cut-off limit and therefore saw no concrete advantage to a random testing program. As well, the impact on employee privacy is significant and out of proportion to any benefit gained from the program. Therefore, the random testing program does not meet the reasonable test set out in the KVP decision that forms the basis for arbitral review.
Court of Queens Bench: On September 17, 2010, the New Brunswick Court of Queen's Bench quashed this decision. The Court ruled that a threshold exists somewhere between a dangerous workplace such as the Irving mill and an office environment, for example, below which an employer must show a history of accidents to justify such a policy. The Court found it was not reasonable to limit that threshold to workplaces that are "ultra dangerous" stating it is an unreasonably high standard. The Court also found that the fact there is a risk that a catastrophic incident could occur at the plant would justify introducing a policy; there is in fact an advantage to be gained. The technology (breath testing) is minimally intrusive and limited to those holding safety-sensitive positions. "Prevention of one catastrophe in the lifetime of the plant would be enough tot make it a reasonable policy in my view."
The Court's ruling can be viewed at: http://www.canlii.org/en/nb/nbqb/doc/2010/2010nbqb294/2010nbqb294.html
Court of Appeal: The Communications, Energy and Paperworkers Union appealed the Court ruling to the New Brunswick Court of Appeal. Their decision issued on July 7, 2011 upheld the lower Court ruling. They found the core question to be,
"Must an employer's decision to adopt a policy of mandatory random alcohol testing for employees holding safety-sensitive positions be supported by sufficient evidence of alcohol related incidents in the workplace?"
The Court reviewed the case law and disagreed that arbitrators have overwhelmingly rejected mandatory random alcohol testing, although the acceptance of random drug testing has met with more resistance. Once a workplace is identified as inherently dangerous, there is no need for the employer to establish existence of an alcohol problem in order to introduce random alcohol testing. The Court found the employer's and employee's rights are reasonably balanced when random alcohol testing is introduced to a workplace that is inherently dangerous, testing is done by breath analyzer, and it only applies to employees holding safety-sensitive positions. It notes as a matter of logic, any legal reasoning applicable to random alcohol testing would apply equally to random drug testing, as both have a deterrent effect. However, the issue of measuring present impairment remains a concern.
As the case concerned random alcohol testing, there was no direction on random drug testing in a union environment. The union was granted leave to appeal to the Supreme Court of Canada on March 22, 2012.
The Court's Ruling can be accessed at: http://www.canlii.org/en/nb/nbca/doc/2011/2011nbca58/2011nbca58.html
Supreme Court: The Court heard from both parties and several interveners representing unions and industry. In a split decision, the majority found in the absence of a specific provision in the collective agreement, duly negotiated between the parties, an employer cannot unilaterally impose random alcohol testing solely because the positions held are safety-sensitive and/or the workplace is dangerous: an alcohol or drug problem must also be demonstrated to exist among the employees. It is expected this same argument would be present for the introduction of random testing.
The Court did rule that testing may be used where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, and where the employee returns to work after treatment for substance abuse.
The Ruling is found at: http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.html
The Supreme Court's conclusion will play a role in two arbitration cases currently awaiting ruling.
- In Teck Coal Limited and United Steelworkers (Elkview and Fording River Operations), an interim ruling allowed continuation of a program of random alcohol and drug testing pending the arbitrator's final decision on the merits of the testing. That decision has not been released (April 2015)
- Suncor Energy introduced random alcohol and drug testing for its N. Alberta operations and was challenged by UNIFOR. In a March 2014 decision, the arbitrator ruled that the random testing was unreasonable as Suncor didn't have sufficient evidence to prove there is a "significant alcohol or drug problem exhibited by the union's members, or a legitimate safety risk to warrant such a problem. It is currently going through judicial review and a decision has not been released. (April 2015)
• Construction Industry: There have been rulings in the construction industry that have specifically examined the requirements for reasonable cause and post incident testing.
- In Suncor Energy and the Communications, Energy and Paperworkers Union (D. Elliott, Alberta, September 3, 2008), the arbitrator agreed that reasonable cause may be a factor in deciding to test in a post incident situation, but it is not required. The company policy required testing after an incident unless the investigator could "rule out" the involvement of alcohol or other drugs. The arbitrator pointed out that "there is no way anyone could, with certainty, absolutely rule out drugs and alcohol unless the supervisor had been in the employee's presence and watched him or her every moment for some period before and during their shift." As a result testing would have taken place in situations where it was not appropriate.
Instead, the arbitrator ruled that it would be acceptable in the investigation of an accident, near miss or other potentially dangerous incident to test any employee directly involved in the situation when there are reasonable grounds to do so, or when the investigators decide there is no credible explanation for the incident. Both members of the panel concurred.
- A similar ruling was issued on October 31, 2008 involving the Mechanical Contractors Association of Sarnia and Sarnia Construction Association and a number of the construction trade unions. (T. Jolliffe, Ontario). The arbitrator upheld reasonable cause and post incident testing in a risk-sensitive operating environment. The decision in a reasonable cause situation would be triggered based on actual observations which realistically presented some grounds to believe he person was working while under the influence of alcohol or other drugs. In a post incident situation (significant incident, accident or near miss) it would be acceptable where the condition of the employee is seen as a reasonable line of inquiry. There must be a connection between the employee and the incident, evidence their acts or omissions contributed to the incident, and consideration as to whether testing would assist in the investigation (in other words, other obvious causes like mechanical failure or environmental factors could be ruled out). Automatic termination for a positive test result would not necessarily be accepted, recognizing the employer's obligation to accommodate any individual with a dependency (disability).
Although both cases were decided in the context of a construction industry grievance, the comments are of interest to a wide variety of employers engaged in safety/risk-sensitive operations in Canada.
- Site Access Testing: Suncor introduced a new requirement for site access testing for contract workers prior to working at their Southern Ontario sites. There was an arbitration hearing involving the Mechanical Contractors Association Sarnia and United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry in which the requirement for site access testing was not upheld. The arbitrator relied on the Supreme Court ruling in Irving saying it was insufficient for an employer to cite general concerns about safety as a justification for imposition of pre-access drug testing. They must show evidence of an actual, existing substance abuse problem at the specific worksite which creates a real potential for significant workplace health and safety events in order to have this pre condition for drug testing without cause. (August 20, 2013)
The decision is found at: http://www.canlii.org/en/on/onla/doc/2013/2013canlii54951/2013canlii54951.html
- An application was made for judicial review, and in a November 27, 2014 ruling, the application was dismissed as the arbitrator's ruling was found to be reasonable.