Workplace safety is an important issue for employers and employees. In British Columbia, the Workers Compensation Act requires employers to ensure the health and safety of their workers and anyone else working in the workplace. Workplace accidents also lead to productivity loss, lower employee morale and increased insurance premiums.

In an attempt to solve these problems, some employers have implemented drug and/or alcohol testing programs, which pose both practical and legal issues. The main practical issue arising from such testing is a lack of effectiveness, with some researchers finding little evidence that testing for illicit drug use has an effect on performance measures and work safety, and legal issues have arisen from human rights and privacy challenges.

In British Columbia, drug and alcohol testing programs of provincially regulated employers can be challenged on the basis of Section 13 of the BC Human Rights Code which prohibits discrimination in employment on the basis of physical or mental disability, unless the discrimination is based on a bona fide occupational requirement. In the case of federally regulated industries, the applicable legislation is sections 7 and 10 of the Canadian Human Rights Act.

While many cases have considered the human rights issues involved in alcohol and drug testing, the discussion in this article is limited to Entrop v. Imperial Oil Limited1 and Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co.2

In Entrop, the Ontario Court of Appeal examined the relationship between a bona fide occupational requirement and the duty to accommodate in considering Imperial Oil's drug and alcohol testing policy and concluded that random and pre-employment drug testing were not bona fide occupational requirements, as they did not measure actual impairment of an employee's ability to perform work safely. On the other hand, breathalyser tests for alcohol were a reasonable requirement for employees in safety sensitive jobs as they did measure current impairment. The Entrop decision has become authority for the proposition that random or blanket drug testing of employees or prospective employees is discriminatory.

In Kellogg, at issue was Kellogg's hiring policy that required all non-union applicants to pass a pre-employment drug test, which the respondent, a recreational drug user, failed. On appeal from the chambers judge's ruling that the policy discriminated against the respondent based on a perceived disability, the Alberta Court of Appeal concluded that the policy was not discriminatory because it was directed at the actual effects suffered by recreational cannabis users and not the perceived effects suffered by addicts.

The Kellogg decision muddies the already murky waters of the debate over alcohol and drug testing. As noted, in Entrop, the Ontario Court of Appeal found that blood tests for drugs did not indicate actual impairment of ability to perform work safely and were not, therefore, a bona fide occupational requirement. As well, the Entrop decision has long been considered determinative of the issue that random or blanket drug testing of employees or prospective employees is discriminatory. By finding that pre-employment testing of recreational drug users is not discriminatory and concluding that there is a nexus between recreational drug use and impairment on the job, the Alberta Court of Appeal in Kellogg has reached a conclusion that appears to conflict with Entrop. Lower courts will now have to grapple with which reasoning they wish to follow, and the law in this area is once again in a state of flux. It is also particularly unfortunate that the Supreme Court of Canada has dismissed Kellogg's leave to appeal as it could have provided employers with some much needed guidance.

A further question arising from the Kellogg decision is that, one could now presumably argue that the reasoning adopted by the Alberta Court of Appeal should also apply with regard to those who drink alcohol socially, i.e, that they are equally likely to be 'impaired' at work.

In Kellogg, the Alberta Court of Appeal also refused to consider whether the policy discriminated against drugaddicted employees, as that specific issue was not before the court.

Although the Alberta Court of Appeal's decision in Kellogg is problematic, of particular interest is the Court of Queen's Bench endorsement in Kellogg, of expert evidence that alternative methods of detecting impairment, including training supervisors to recognize the signs of impairment, would be “more reliable and individual” than urine testing.

These 'alternative' methods called fitness for duty or impairment testing have existed for a number of decades, and there are many technologies to measure impairment.3

Regardless of the technology used, the purpose of impairment testing is to determine impaired functioning, not the presence or past use of drugs and alcohol. It also provides instantaneous feedback to employers regarding an employee's ability to work safely. Although breathalyzer tests also provide immediate feedback, unlike impairment testing, they are limited to detecting impairment due to alcohol and miss other sources of impairment such as drugs, fatigue, stress or illness.

While not yet judicially considered in Canada, impairment testing could be challenged on the basis that a failed test arises from grounds protected under human rights legislation, for example, family status, such as when a new parent repeatedly fails the test due to fatigue caused by sleep deprivation. Other concerns include a lack of correlation between test content and actual job tasks and the failure of pre-shift testing to catch job-induced fatigue later in a shift. In addition, impairment testing involves the collection of employee personal information (test results), therefore, employers must ensure that they comply with applicable privacy legislation in the collection, use and retention of the information.

Nevertheless, impairment testing is a viable alternative or adjunct to drug and alcohol testing, particularly with regard to employees in safety-sensitive positions, as current research indicates that it would be more effective in identifying impaired employees.  Unlike drug and/or alcohol testing, the purpose of impairment testing is to determine impaired functioning, not the presence or past use of drugs and alcohol. It provides instantaneous feedback to employers regarding an employee's ability to work safely. It is also invaluable as it can assist employers with determining impairment due to sources other than drugs and alcohol, such as fatigue and stress. Furthermore, impairment testing is likely to be less invasive and more respectful of employee privacy than drug or alcohol testing.

While legal issues surrounding impairment testing remain, including potential human rights and privacy claims by employees and unions, empirically tested methods of impairment testing would not be subject to the main criticisms that judges and arbitrators have leveled against drug and/or alcohol testing; i.e., the inability of drug and alcohol testing to measure actual impairment and to provide immediate results. It is therefore likely that impairment testing would better withstand such legal challenges.