Earlier this year, the Supreme Court of Canada (SCC) refused the union’s leave application in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (Suncor ) thereby leaving the Alberta Court of Appeal’s (ABCA) ruling intact. The ABCA had held that evidence of substance-related safety risks across an employer’s workforce (including both union and non-union workers) may be taken into account when assessing the permissibility of random testing of unionized workers.
Suncor is a favourable result for employers because it is in step with taking a holistic approach to workplace safety. But it is by no means a green light for drug and alcohol testing. With the legalization of recreational use of cannabis fast approaching, we outline the current state of the law and key best practices for workplace impairment testing.
In assessing the permissibility of a substance testing policy, courts and other decision makers must balance workplace safety and employee privacy.
The usual starting point is to consider whether the policy applies to positions that are safety-sensitive. A safety-sensitive position is commonly defined as one where impairment due to substance use may pose a significant safety risk to the work environment and those within it – unfortunately this definition is rather circular. Accepted examples from the case law include certain positions at mining, construction, hydro, or oil extrusion sites, and positions involving the operation of heavy machinery or transportation of passengers.
The invasiveness and the reliability of the testing are important considerations. More reliable, and less invasive, methods of testing are more defensible.
Sometimes an employer may want to test a specific employee for substance use. Targeted testing is generally permissible if the employee holds a safety-sensitive position and specific circumstances exist, e.g., if the employee is reasonably suspected to be impaired on the job, or was involved in a workplace accident or significant incident that is not explained by operational or machinery failures. Targeted testing may also be permissible where the employee returns to work following substance abuse treatment and the testing is part of a rehabilitative program.
A random drug and alcohol testing policy, i.e., a policy which contemplates testing multiple employees on an unannounced basis, may be challenged in the context of a collective agreement, and also under human rights legislation.
Establishing that the position is safety-sensitive is not in itself enough to justify a random testing policy; as the SCC clarified in its 2013 landmark decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (Irving ), there must also be evidence of enhanced safety risks, such as general substance use in the workplace. This evidence, as established in Suncor, does not necessarily need to be specific to unionized employees. Rather, the risk may be established in the workplace more broadly, and might include instances of finding alcohol or drug paraphernalia on site, regardless of whether they are linked to unionized employees. However, whether evidence pertaining to non-union employees will be relevant, or determinative, will depend on the circumstances at issue.
The SCC also affirmed in Irving that certain threshold requirements (i.e. the “KVP test”)must be met if the employer is subject to a collective agreement:
- the policy must not be inconsistent with the collective agreement;
- the policy must not be unreasonable;
- the policy must be clear and unequivocal;
- the policy must be brought to the attention of the employee affected before the company can act on it;
- the employee concerned must have been notified that a breach of the policy could result in discipline; and
- the policy must have been consistently enforced by the company from the time it was introduced.
Human rights challenges
As mentioned above, an employee can challenge the employer’s substance testing policy under human rights legislation. Under human rights legislation, employers are required to accommodate employees with disabilities, but not to the extent of undue hardship on the operation of the employer’s business. If the policy is found to be discriminatory on its face, following the Ontario Court of Appeal’s 2000 decision in Entrop v Imperial Oil Limited (Entrop ), the employer would need to establish that the policy is justified as a bona fide occupational requirement by demonstrating that:
(1) the employer adopted the policy for a purpose rationally connected to the performance of the job;
(2) the employer adopted the policy in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) the policy is reasonably necessary to the accomplishment of that legitimate work-related purpose.
While the tests applied in Irving and Entrop are distinct, both tend to focus on balancing workplace safety with employee privacy rights and have produced similar results. Both Irving and Entrop are also relevant to pre-employment testing (testing as a condition of employment) in that the same balancing of interests – safety vs. privacy – as used in the employment context will be applied to pre-employment testing.
Current testing does not accurately indicate when marijuana was consumed, and, until recently, there has been no consensus on a particular THC level (THC is the chemical responsible for most of marijuana’s effects) that indicates impairment. However, under a new Regulation (made under Bill C-46), the federal government has set specific blood THC levels for the purpose of measuring impairment when operating a motor vehicle or vessel. According to the Regulation, it will be a summary offence to operate a motor vehicle with blood-THC concentration of at least 2 nanograms per millilitre of blood, and a hybrid offence with at least 5 nanograms per millilitre of blood.
Generally speaking, these standards were not intended for workplace drug testing policies and are likely to be the subject of further legal debate. Nevertheless, employers who are seeking to implement a THC impairment standard in the workplace may be justified in adopting these standards, depending upon the nature of the workplace.
Employers who are contemplating putting a substance testing policy in place should proceed with caution and be sure to consult with safety experts and legal advisors. Employers should also, at a minimum, take the following precautionary steps:
- Be aware of any signs of drug or alcohol use in the workplace. Document and retain any evidence suggesting such conduct. The evidence may be useful in justifying the implementation of a random testing policy.
- Ensure that the proposed testing policy is in sync with the organization’s accommodation policy and that both policies adequately address employees who have addiction or substance abuse issues.
- Ensure any proposed substance testing is as minimally invasive as possible, and accompanied by clear guidelines respecting employee privacy and the collection and use of personal information.
- Be cautious about importing the federal government’s new impairment standards into testing policies. These standards may prove to be particularly useful in assessing impairment in post incident or accident circumstances where the employee consents to the testing. However, employers who choose to adopt these standards should ensure they watch for new legal developments in this area, as the standards will likely be subjected to legal scrutiny in the near future.
- Where possible, seek consent from unions and joint health and safety committees before implementing a random testing policy.
In addition, employers must ensure that the substance testing policy and procedures align with the privacy legislation in their jurisdiction, e.g., by obtaining the requisite consents and respecting any limitations on the collection, use and disclosure of information applicable to the testing process. In doing so, employers should be aware that privacy laws vary by province.
– Many thanks to Shira Sasson and Jan Nato for their assistance with this article.