2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Ontario Court of Appeal: Random Drug Testing Still Unjustified
The decision of the Ontario Court of Appeal in Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900,  O.J. No. 2037 [“Imperial”] marks yet another victory for employee privacy rights in the collective bargaining sector. Once again, an employer’s attempts to institute random drug testing have been brought to a halt. The Ontario Court of Appeal has declared that random drug testing is rarely justified, even in safety sensitive work settings.
Background In 1992, Imperial Oil introduced a new policy whereby its employees working in “safety sensitive” positions at its Nanticoke refinery could be subject to both random breathalyzer and urinalysis drug testing. “Safety sensitive positions” were characterized as positions which have a direct and key role in operations where impairment could have catastrophic consequences affecting the health and safety of all personnel and have no direct or very limited supervision. The new drug testing policy was challenged under the Ontario Human Rights Code by an employee of Imperial Oil. The board of inquiry hearing the matter found that the provisions of the policy contravened the Code. On appeal, the Ontario Court of Appeal affirmed the board of inquiry’s finding. It was concluded that Imperial had developed and implemented the policy honestly and in good faith. However, the Court decided that the impugned alcohol and drug testing provisions of the policy were prima faciediscriminatory under the Code’s prohibition of discrimination based on disability. The court held the random administration of a breathalyzer test in safety sensitive positions where supervision was limited or non-existent was a reasonable workplace requirement to achieve an alcohol-free work environment because it could measure actual impairment. However random urinalysis testing was found to be unjustified given that it provided no measure of on-the-job impairment, only evidence of past drug use and it treated casual users as addicts: see Entrop v. Imperial Oil Ltd.,  O.J. No. 2689 (Ont. C.A.) (“Entrop”).
In the aftermath of Entrop, Imperial Oil continued random breathalyser alcohol testing, but stopped random urinalysis drug testing at the Nanticoke refinery. In the years that followed, the company received expert advice that oral fluid (saliva) testing could reveal current marijuana impairment, albeit the results of the tests were not known immediately. As a result, in July of 2003, Imperial Oil began random oral fluid testing of their safety sensitive employees.
In October of 2003, the Union challenged Imperial Oil’s new oral fluid form of drug testing by way of a grievance. Notwithstanding Entrop, the Union’s grievance also challenged the company’s random breathalyser testing for alcohol impairment.
First, by a preliminary award, the arbitration board unanimously held that the Union was precluded from challenging Imperial’s random breathalyser alcohol testing as the Union did not file any grievance concerning this testing until 2003. Since the Union had thereby acquiesced in Imperial’s longstanding alcohol impairment testing, the Board ruled that it would be inequitable for the Union’s attack on that testing to proceed. The Union did not challenge this preliminary award.
The arbitration board held that the random drug testing of employees, absent a “reasonable cause”, violated Article 3.02 of the Collective Agreement intended to provide for the treatment of individuals in the workplace with “respect and dignity”. The board further held that even if the random testing did not violate the Collective Agreement, such testing could not be justified “on a responsible application of the balancing interests approach [employee privacy rights vs. allowing employers to ensure safe work environments] in a safety sensitive environment”. This ruling of the board was appealed to the Divisional Court where it was fully dismissed. Imperial then appealed from the Divisional Court’s judgment to the Court of Appeal.
Outcome at the Court of Appeal
The Court of Appeal unanimously dismissed Imperial’s appeal. Following in line with the decisions in Communications, Energy and Paperworkers Union of Canada, Local 143 v. Goodyear Canada Inc. [“Goodyear”] where the Quebec Court of Appeal found random drug and alcohol testing too privacy-intrusive even in safety sensitive positions and Entrop, discussed above, the Court of Appeal held that absent a reasonable cause, Imperial’s random drug testing of employees, even in safety sensitive positions violates Article 3.02 of the Collective Agreement. They concluded that the decision of the board was reasonable given that there had never been even one substantiated case of drug impairment at Imperial’s refinery and no indication of a drug problem in the workplace or community. They stated that Imperial’s random drug testing constituted an “unwarranted intrusion on [employees’] privacy [and] an unjustifiable affront to their dignity.”
Impact on Employers
This decision marks yet another win for employee privacy rights when it comes to random workplace drug and alcohol testing.
In the collective bargaining sector, the decision in Imperial does away with the ability to implement random oral fluid testing for marijuana use even though the test measures current impairment, taking employee privacy rights to the next level. This decision is in some ways a step back for employers wishing to implement random drug and alcohol testing in their workplaces. Although the oral fluid test reveals current marijuana impairment, the samples must be sent away to a lab for analysis and thus the results are not known immediately. This falls in line with the theory that random alcohol and drug testing done in safety sensitive work environments should not only measure current impairment, but should reveal said impairment immediately in order to help create a safe working environment.
Simply put, unless alcohol and drug testing is done for:
- reasonable cause;
- as part of a rehabilitation program;
- or is consented to as part of a pre-employment collective agreement,
it will seldom be justified, even in safety sensitive work environments.
Editor’s Note The particular issue as to whether random alcohol testing is discriminatory was not specifically re-considered in this case and has not been re-considered by the Courts since the decision in Entrop, supra.
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This is a Cox & Palmer publication prepared by our Labour & Employment group in Fredericton, NB. It is intended to provide information of a general nature only and not legal advice. If you have any comments or topic suggestions, please contact Jamie Eddy at: email@example.com.