In the September 2007 edition of Focus, we reported on the jurisprudence concerning on-the-job drug testing.

The Court of Appeal recently pronounced on the validity of an alcohol and drug testing policy in a case between the Communications, Energy and Paperworkers Union, Local 143 and Goodyear Canada Inc.1 (hereinafter "Goodyear").

In this case, the Court had to determine whether the employer’s testing policy, as amended by a grievance arbitration decision, was legal. The policy provided for mandatory testing in five specific instances: (1) for applicants and new employees, (2) where there were reasonable and probable grounds for believing that a person was impaired due to the consumption of alcohol or the use of drugs, (3) following a major accident, (4) following an absence related to the consumption of alcohol or the use of drugs and, finally, (5) without notice and at random for "safety-sensitive positions".

There was no contestation of the likelihood that such testing infringes the human right to integrity, the protection of dignity and the respect of privacy guaranteed by the Charter of human rights and freedoms2 (hereinafter the "Quebec Charter") and the Civil Code of Quebec3. Indeed, such tests are invasive and could reveal confidential information about an employee’s state of health, which information could be recorded and potentially be discriminatory.

The Court reiterated however that such rights are not absolute and that testing may be legal if reasonably warranted. The objective of the testing must be legitimate, the infringement of human rights must be minimal, and the means used must have a rational connection with the intended objective.

The Court held that compulsory random alcohol and drug testing without notice for "safety-sensitive positions" did not constitute reasonably minimal infringement that could justify the testing. There were no facts indicating that such testing for safety-sensitive positions (requiring steady concentration and keen perception) was essential for the protection and safety of the other employees. In the Court’s view, Goodyear, a tire-manufacturing plant, was not operating a business presenting a level of danger requiring special protective measures for the public and employees. Furthermore, contrary to what Goodyear claimed, the evidence did not establish a connection between the company’s poor industrial accident record and the consumption of drugs and alcohol. There were no facts revealing any specific problem related to the consumption of such substances by the plant employees. Since random testing was, under the circumstances, contrary to the Quebec Charter, the Court of Appeal ordered that the relevant clause be struck from the policy.

As for the other drug screening measures contained in Goodyear’s policy, the Court found they were warranted based on reasonable cause. The tests are based on reasonable and probable grounds for believing that a person is impaired, or they are conducted after a major accident or an absence related to the consumption of drugs or alcohol. As is generally acknowledged in the jurisprudence, such measures strike a fair balance between the rights of the employees to their dignity and privacy on the one hand, and the employer’s right to protect the company’s legitimate interests and organize its work on the other hand. The Court did not rule on the validity of the systematic testing of Goodyear’s job applicants.