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DRUG AND ALCOHOL TESTING IN THE WORK PLACE

INTRODUCTION
 
An employer’s ability to have employees submit to random drug testing or alcohol testing must first meet the requirements of the Human Rights legislation. Specifically section 11 and section 17 of the Human Rights Act of Ontario state:
 
            11 (1)   Constructive discrimination – A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
 
  1. the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
  2. it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. 1986, c. 64, s. 18 (8)
     
    (2) Idem – The Commission, the board of inquiry or a court shall not find
    that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, in any. 1986, c. 64 s. 18 (8); 1994, c. 27, s. 65 (1)
     
                (3) Idem . – The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 1986, c.64, s. 18 (8); 1994, c. 27, s. 65(2) , part. 
     
     
    17. (1)  Handicap. – A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap. 1986, c. 64, s. 18 (9)
     
    Until 1999 the ability of employers to rely upon section 11 and section 17 were limited as arbitrators and the courts were caught up in a distinction between direct and adverse effect discrimination.  Fortunately in 1999, the Supreme Court of Canada intervened in “Meiorin” and the Chief Justice of our country provided seven reasons for abandoning the distinction between direct and adverse effect discrimination. 
     
    MEIORIN BONA FIDE OCCUPATIONAL REQUIREMEN TEST
     
    Our Supreme Court affirmed a unified approach that avoids the distinction and requires the employers setting workplace rules to accommodate effected employees as much as reasonably possible, and permits employers to maintain discriminatory rules reasonably necessary to achieve legitimate work related objectives.
     
    With respect to alcohol and drug testing, both are prima facie in violation of the Human Rights legislation.  Therefore employers must satisfy a trier of fact, whether an arbitrator in a unionized environment or a judge in a non-unionized environment, that the needs of the person or group which is affected can not be accommodated without undue hardship on the person responsible for accommodating those needs (section 11 (2) and section 17 (2) ).  The tests as set out in “Meiorin” can be stated briefly:
     
                            Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR.  An employer may justify the impugned standard by establishing on the balance of probabilities:
     
  3. That the employer adopted the standard for a purpose rationally connected to the performance of the job;
     
  4. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
     
  5. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
               
     
    If the three step is met then the work place rule is a bona fide occupational requirement (BFOR) 
     
    In the unionized environment, the first question an employer should ask itself is whether the collective agreement addresses the issue of alcohol and drug testing.  If there is no specific provision allowing drug testing, then the question becomes whether the management rights clause allows the introduction of the testing. 
     
    “SAFETY SENSITIVE” PLACES OF EMPLOYEMENT
    To date, the first step in the test referred to above is generally connected to safety sensitive places of employment.  When the work place is in the manufacturing or production industry, all employees could be considered to be in a safety sensitive area and therefore all employees would be affected by a policy.  This was the case in a decision from 1992 in Dupont Canada Inc. v. C.E. P., Local 28-O where the arbitrator held that all workers were safety sensitive areas.  This was held even though the actual factory had approximately 500 employees in the bargaining unit and had a superior safety records, in fact it had operated for 10 years without a single injury on the job.  Further over a period of several decades there has been no incident or accident at the Dupont site that was caused by drug or alcohol abuse from within the bargaining unit.
     
    Therefore it is not a requirement that there be a drug or alcohol problem at the site before implementing a policy.
     
    ENTROP
     
    In the Entrop et. al. v. Imperial Oil Limited et al.  the Court of Appeal was able to delve in to many of the issues and had the opportunity to compare and contrast drug testing and alcohol testing.  The important difference between alcohol and drug testing is that a positive drug test does not demonstrate impairment, a positive breathalyzer reading does.  Therefore random alcohol testing for safety sensitive positions,  though discriminatory on its face, can be justified by an employer provided the sanctions for a positive test are individually tailored.
     
    In its analysis the Court relied upon uncontradicted expert evidence that drug abuse and alcohol abuse, together known as substance abuse, are each a handicap, an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning.  Therefore all substance abusers are handicapped and are entitled to protection of the Human Rights code.
     
    The difficulty with drug and random alcohol testing is it may only show that the person is a casual user and not a substance abuser, and therefore the person who fails the test may not be afforded protection under the Human Rights Code. Therefore all policy provisions with respect to pre-employment drug testing and random alcohol testing are prima facie discriminatory, and the employer always bares the burden of showing that they are bone fide occupational requirements. 
     
    In meeting the tests as set out above, usually the first two standards arms of the test are met easily.
     
    WHEN WILL A POLICY APPLY WITHSTAND SCRUINTY
     
    Step 1
     
    Has the employer adapted the testing for the purpose rationally connected to the performance on the job as stated above.  This is usually met in safety sensitive areas of employment.
     
     
    Step 2
     
    Did the employer adopt the testing provisions in an honest and good faith belief that they were necessary to accomplish the company’s purpose.   Clearly in a safety sensitive work environment both tests would be met.
     
    It is the writer’s position that without a health and safety concern, alcohol testing would only be condoned by the trier fact after a substance abuse problem has arisen.  Drug testing on the other hand can be extremely difficult to implement, and we would recommend only implementing such a system if there are health and safety concerns. In Entrop the court and the board found that there were inadequate assessments on the effect drug use has on job performance, nor was there enough evidence to demonstrate that the drug testing programs have been shown to be an effective way to reduce drug use or work related accidents as a result of drug use or work performance problems.  As a result, random drug testing for employees, even in safety sensitive positions was not justified as reasonably necessary to accomplish the employer’s goal.  Further, Imperial Oil attempted to discipline all employees failing a drug test with termination.  For employees in safety sensitive positions, failing one drug test, the only sanction was termination. 
     
    Obviously the progressive discipline in a unionized environment needs to be complied with even when an employee has failed a drug test.   
     
    Alcohol testing stands on a different level.  Breathalyzer testing shows immediate impairment and there is ample evidence that demonstrates the affect of alcohol impairment on reaction time in work related accidents etc.   Employers are also encouraged to have a number of checks in place and to take many different steps to detect alcohol impairment amoung its employees in safety sensitive jobs.  We therefore have the ability to randomly test for alcohol impairment, however we must then take the results and accommodate the employee pursuant to the Human Rights legislation.  The accommodation should include a consideration of sanctions less severe than dismissal and if necessary support for the employee to undergo treatment or a rehabilitation program.
     
    The recommendations of arbitrators and judges have found that in alcohol testing, anything above .04 in a safety sensitive environment is unsafe and would trigger the progressive discipline and accommodation requirement.  After rehabilitation , and after an employee returned to work or after a substance abuse related accident the appropriate standard would be .02 BAC. 
     
    Other questions:
     
  6. Are employees required to disclose past substance abuse on their application before being transferred to safety sensitive areas?
     
    The employees are required to provide the information, however, generally the courts have found that the period in question should be the past five years.  A previous alcohol or drug abuse problem prior to five years does not increase that person’s chances of becoming a dependent a second time as compared with that of the general population.
     
  7. Should companies consult with the union in the establishment of its drug an alcohol policy?
     
    There is no requirement unless the collective agreement specifically lists this as requirement.  Unionized employers can rely on the management rights clause in a standard collective agreement.
     
  8. Does the collective agreement require an express statement allowing testing for drugs and alcohol?
     
    No.  Once again rely upon the management rights clause.
     
  9. Is risk avoidance a legitimate goal of the drug and alcohol policy or does the employer need to establish a drug and or alcohol problem to justify the implementation?
     
    Risk avoidance is the appropriate test and no employer is required to await for problems to occur before implementing the policy.
     
     
    Remember a positive drug test does not give an employer conclusive proof that an employee was or would be impaired while at work or that he or she suffers from an  alcohol/ drug addiction or dependency problem.  It can however be used as a significant and relevant piece of evidence which the employer can legitimately weigh in the balance in considering the merits of discipline.  The general practice is that drug and alcohol testing which would require an employee under discipline to undergo drug and alcohol testing on the basis of reasonable grounds after a significant accident or incident or as a preconditioned promotion or transfer into a risk sensitive position are not of themselves unreasonable, and thus not a violation of a the collective agreement or Human Rights legislation.
     
    After an employee has a recently manifested addiction or dependency problem with drugs or alcohol, or even if not addicted has recently demonstrated that he or she has engaged in the abuse of drugs or alcohol affecting the work place, or is in a drug or alcohol drug rehab process, it is a reasonable exercise of the employer’s discretion and co-operation with the union to subject the employee upon return to work to random testing for period of up to two years.  I recommend the employer work together with the union to arrive at a policy as annunciated by the Supreme Court of Canada, who in 1992 made it clear that the duty to accommodate an employee with a disability is a duty shared by the union and the employee as well as the employer.  The unions are required to provide appropriate co-operation including agreeing to actions taken on behalf of the employee that might amount to a modification of the terms of the collective agreement.  The union must be a party to the accommodation efforts by the employee and company.
     
    CONCLUSION
     
    In conclusion, employers must weigh the costs associated with implementing the policy and insuring that the policy is properly put in place.  The last thing any employer would want, or should want, is a drug test and or alcohol breathalyzer test to not be relied upon or for the policies to be struck down by an arbitrator or judge and an employee reinstated or awarded damages.  Employers need to have confidence that their system would be upheld and the programs that the employers can put in place will ensure an increased level of safety in the work place.   Employers must also remember that the obligation on
     
     
    the employer is to accommodate an employee who suffers from drug or alcohol dependency to the point of undue hardship. It is more likely that a policy will be found to be reasonable where other programs are also developed by the employer and the policy has an accommodation clause contained in the policy.    
     
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com