On the heels of June’s Irving Pulp and Paper decision from the Supreme Court of Canada (SCC), which severely limited the circumstances when random drug and alcohol testing is permissible in the workplace, an Ontario arbitrator recently held that mandatory pre-access alcohol and drug testing was an unreasonable exercise of management rights, violated the privacy rights of employees, and constituted an infringement of the Ontario Human Rights Code.
For employers, this decision adds another hurdle to conventionalizing testing programs. By staying true to the recent SCC decision and previous arbitral jurisprudence, this case identifies only a narrow opening for employers to implement random and pre-access testing to maintain a safe environment in safety sensitive workplaces.
The facts giving rise to the grievance in Mechanical Contractors Association Sarnia (MCAS) v United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663 (UA) arose when MCAS decided to comply with Suncor’s policy requiring contractors to undergo mandatory pre-access alcohol and drug testing.
In assessing the policy, the arbitrator’s analysis balanced the various competing interests between the employer and the employees. When interpreting a decision by management to implement a policy outside of the negotiated terms of a collective agreement, a balance must be struck between the safety interests of employers and the privacy rights, liberty, and personal autonomy of employees.
While recognizing that pre-access testing is not the same as random testing (the central issue in Irving Pulp and Paper), the arbitrator analogized the two as the law indicates that both require extenuating circumstances to be implemented through the management rights’ clause. Whether the extenuating circumstances are sufficient to justify such testing will depend on the degree of safety sensitivity and the demonstrated legitimate need in the specific workplace.
The type of evidence required to demonstrate extenuating circumstances may vary, but in each case the evidence must be taken from the specific workplace and it must be cogent, direct, and non-anecdotal. Also, an employer must demonstrate that testing will actually improve workplace safety. The arbitrator acknowledged that the threshold was high, but that such a threshold was the intended result from the SCC’s decision in Irving Pulp and Paper.
In this grievance, the arbitrator found that there was insufficient evidence. For example, there had been no history or current issue with alcohol or drug-related incidents. To a great extent, the union felt compelled to comply with the policy based on knowledge that Ontario was the only remaining location in the North American petrochemical industry still without a pre-access testing program.
The arbitrator found a number of faults with the idea of pre-access testing, namely that there was no statistical correlation between testing and a decrease in workplace injuries, nor could a pre-access test be an indicator of an employee’s behaviour after passing the test and gaining access to the worksite. These factors, combined with a need to show a history of alcohol or drug-related incidents at the particular workplace, ultimately lead the arbitrator to find that the policy was an unreasonable exercise of management rights and an infringement of the Ontario Human Rights Code.
The arbitrator reiterated the three instances described by the SCC in Irving Pulp and Paper where the employer’s interests prevail and a drug testing program is justifiable: where there is reasonable cause to believe that an employee was impaired while on duty (reasonable cause testing), when an employee is involved in a workplace accident (non-random post-incident testing), or when an employee returns to work following treatment for substance abuse.
For more on the Irving Pulp and Paper decision, please refer to our blog posting of June 16, 2013.