In a unanimous decision issued today, the Ontario Court of Appeal may have slammed the door on efforts by employers in unionized workplaces in Ontario to promote safety in those workplaces by curtailing alcohol and drug impairment by means of a random testing program. The Court has upheld a decision of an Ontario Board of Arbitration regarding a grievance filed against Imperial Oil Limited challenging its random drug testing program at a unionized work site in Ontario.

Imperial Oil has for years been at the forefront of the promotion of alcohol and drug policies as a component of its health and safety program. In 1992, Imperial Oil introduced an alcohol and drug policy, which included post-incident testing, reasonable cause testing, testing as part of a rehabilitation program, certification testing for safety-sensitive positions and random unannounced alcohol and drug testing.

That policy was challenged under the Human Rights Code (Ontario) in the Entrop case. The resulting decisions of the Board of Inquiry were ultimately considered by the Ontario Court of Appeal in a decision released in 2000. Most aspects of the policy were upheld, including random unannounced testing for alcohol by use of a breathalyser for employees in safety-sensitive positions. However, the Ontario Court of Appeal in Entrop agreed with the Board of Inquiry that random unannounced drug testing by urinalysis could not measure current impairment, only past drug use.

Subsequent to the Entrop decision, Imperial Oil investigated other drug testing technologies and adopted an oral fluid (saliva) drug testing regime which could detect current impairment by cannabis, thus addressing the "fundamental flaw" which troubled the Ontario Court of Appeal in Entrop.

Using the new technology, Imperial Oil reintroduced the random unannounced drug testing program for cannabis only in July 2003.

In response, the union at the Nanticoke refinery filed a grievance. In a lengthy decision issued in 2006, the majority of a Board of Arbitration concluded that absent clear language in a collective agreement, no employee can be subject to random unannounced alcohol or drug testing, save as part of a rehabilitation program. (Admittedly the majority of the Board of Arbitration left open the possibility of a random testing program if it could be established that there was an "out of control drug culture" at a particular workplace, something that was not alleged by Imperial Oil).

In the decision just released, the Court has upheld the decision of the majority of the Board of Arbitration, concluding that it was reasonable.

The Board reached its decision, notwithstanding evidence that random testing is the greatest deterrent to alcohol and drug use at the work site-a proposition readily accepted by most members of the public and most employers as they consider the effect of the RIDE program operating seasonally and periodically in Ontario.

Given the unwillingness of most unions to agree to any random alcohol or drug testing policy, we conclude that the upholding of the decision of the majority of the Board of Arbitration by the Court of Appeal, subject to any further appeal sought to the Supreme Court of Canada, effectively slams the door on Ontario employers' efforts to use this effective tool to promote safety at the workplace.

Employers concerned with safety and the effects of drugs and alcohol still have options. As noted, the Court of Appeal decision addresses unionized workplaces in Ontario. New drug testing technology, using oral fluid rather than urine, should answer the issue posed by the Ontario Court of Appeal in Entrop in 2000 and should permit random unannounced drug testing in non-union workplaces. Further, other aspects of a complete alcohol and drug program have been upheld by courts for both union and non-union workplaces including post-incident testing, random unannounced testing for alcohol or drugs as part of a rehabilitation program, reasonable cause testing, and certification testing for employees entering safety-sensitive positions.

Any alcohol and drug testing policy should be carefully drafted to acknowledge and comply with the employer's obligations under applicable human rights legislation and the directions that have been given by courts in previous cases.