In the September 2007 edition of Focus on Labour and Employment Law, we reported on the state of the law concerning on-the-job drug testing.

The Ontario Court of Appeal, ruling on the drug testing policy at Imperial Oil Ltd. ("Imperial"), recently confirmed that surprise random drug testing is prohibited unless warranted on reasonable grounds.[1]

In 1992, Imperial instituted a drug and alcohol testing policy at its Nanticoke refinery. Among other things, the policy included random alcohol breathalyser tests and random urinalysis tests to detect drug use by employees in safety sensitive positions.

In a decision rendered in 2000,[2] the Ontario Court of Appeal held that such random testing constitutes discrimination based on handicap under the Human Rights Code.[3] However, it upheld random alcohol breathalyser tests since this constituted a reasonable job condition in cases where supervision was limited or non-existent, to achieve an alcohol-free work environment.

But the Court forbid random drug testing, for this did not constitute a reasonably necessary measure for the employer to achieve its objective, namely having a drug-free work environment. In fact, such urinalysis tests could only detect past drug use and therefore could not show that an employee’s faculties were impaired on the job. The Court held that random drug testing did not constitute a legitimate occupational requirement and violated the Human Rights Code.

Further to that decision, Imperial hired experts to determine what screening techniques detect it to know the precise degree of on-the-job impairment by cannabis rather than past consumption. In July 2003, Imperial reinstated random drug testing for employees in safety sensitive positions, but by way of saliva tests.

In a 2006 decision,[4] which we mentioned in the September 2007 edition of Focus on Labour and Employment Law, an arbitration tribunal upheld the provisions of Imperial’s policy on drug testing after an accident, for cause, or as part of an agreement to reinstate an employee with a drug problem.

However, the arbitration tribunal held that the section of the policy authorizing the employer to conduct random surprise drug tests without reasonable cause was invalid. The arbitration tribunal found such tests contrary to the collective agreement, which stipulated that employees must be treated with respect and dignity.

In the view of the arbitration tribunal, random drug testing cannot be warranted out of concern to deter or alter behaviour, and random tests were not warranted at Imperial’s premises out of concern for immediate accident prevention. Indeed, unlike random alcohol testing, which yields immediate results and can thus prevent an employee under the influence of alcohol from returning to work, the results of drug testing by collecting saliva are only known several days after the test is done, which therefore does not prevent an employee under the influence of drugs from working.

The arbitration tribunal held that random drug testing could, under extreme circumstances, be warranted, such as in a safety sensitive workplace which has an "out of control drug culture." In this case, there was no proof that the employees at Imperial were using cannabis. On the contrary, the evidence demonstrated that the workers were conscientious about on-the-job safety since, in the last 15 years, there had been only one positive test out of the thousands of tests done.

In a decision rendered May 22, 2009, the Ontario Court of Appeal upheld this decision of the arbitration tribunal, thus confirming that surprise random drug tests conducted without reasonable cause are illegal, except under extreme circumstances, and violate the respect and dignity of the employees, whether the tests are by way of urinalysis or saliva testing.

Although the decision was rendered in Ontario, it is likely that these principles will be followed by the Québec courts.