There is well-established jurisprudence concerning an employer's authority to impose a drug and alcohol testing policy where the employee could face disciplinary consequences for non-compliance with the policy.
The starting point in the case law analysis is that drug and alcohol testing is seen as a very intrusive measure for an employer to take relative to its employees.
For this reason, in reviewing drug and alcohol testing policies and their application at specific workplaces, courts, arbitrators, and other decision makers have sought to give the greatest possible protection to employee privacy, dignity and bodily integrity while recognizing the legitimate safety interests of employers.
Can an employer test an individual employee for drugs and alcohol, if the employee is working a safety-sensitive position?
The law generally permits the testing of individual employees in safety-sensitive positions when the employer has reasonable cause to suspect the employee may be impaired at work as a result of drugs and alcohol. Specifically, 3 circumstances are contemplated:
- When there is a reasonable cause to believe the specific employee was impaired while on duty;
- When the employee was involved in a workplace accident or incident where impairment is a reasonable line of inquiry; or
- When the employee was in a return to work after treatment for substance abuse (e.g. in the context of rehabilitation testing).
The critical takeaway is that individual testing in these circumstances is generally permissible because it is cause-based testing. In other words, in each of these circumstances where testing is used, the employer has or at least should have, a specific, individual concern which triggers testing the employee. The case law suggests that such cause-based testing may be required when the employer forms a reasonable opinion, based on specific observations, that a particular employee is impaired at work. Whether reasonable cause exists to demand testing is a highly fact dependent exercise; there is no specific set of indicia of impairment required before an employer may make a demand for testing, but an employer should consider the person's physical appearance such as their speech or gait or other relevant considerations.
Can an employer impose a mandatory and random drug and alcohol policy for all employees working in safety-sensitive positions?
Random mandatory drug and alcohol testing is not cause-based testing and, therefore, the considerations are much different.
It involves an intrusion on the rights of an employee regardless of whether that particular employee has given the employer any reason for concern with respect to drug and alcohol use and impairment. As such, generally speaking, this form of testing has only been permitted by courts, arbitrators, and other decision makers in exceptional circumstances. In short, to justify random mandatory alcohol and drug testing, an employer must show "extreme circumstances" such as "an out-of-control drug culture taking hold in a safety-sensitive workplace."
Two recent decisions have addressed mandatory and random drug and alcohol policies for employees in safety-sensitive positions.
Office and Professional Employees International Union v. Ornge Air 2021 CanLII 126376 (CA LA)
In Office and Professional Employees International Union v. Ornge Air, the employer removed a worker from duty in a safety-sensitive position as a result of his medical cannabis use. The union filed a policy grievance challenging the zero-tolerance aspect of the employer's drug and alcohol policy along with an individual grievance claiming that the employer had discriminated against the grievor.
The employer, Ornge Air was the entity responsible for their ambulance and associated ground transportation services in Ontario. The grievor was employed as an aircraft maintenance engineer. The position was safety sensitive because it was responsible for aircraft maintenance and support. The employer's drug and alcohol policy set out a zero-tolerance approach concerning cannabis use with no exception made for medical cannabis. The grievor was diagnosed with an anxiety disorder and prescribed medical cannabis to treat the condition. Complying with the workplace drug and alcohol policy, the grievor advised his supervisor of the cannabis prescription, resulting in him being reassigned to non-safety-sensitive duties. Initially, the employer made "significant and ongoing" efforts to accommodate the grievor by collecting relevant medical information, providing the grievor with alternate work and arranging an independent medical examination. However, following the independent medical examination, the employer determined that the grievor's treatment plan made him unfit for duty and that he could not continue to work because he was in violation of the zero-tolerance policy.
Arbitrator Gail Misra upheld both grievances. In the policy grievance and using the 6 criteria in the analysis set out in Lumber & Sawmill Workers Union, Local 2537 v. KVP Co., 1965 CanLII 1009 (ON LA) ("KVP"), the arbitrator found that the zero-tolerance standard was unreasonable and discriminatory. It was unreasonable under KVP because the blanket ban was "draconian and inflexible". The drug and alcohol policy failed to treat prescribed medical cannabis as a "medication" and also failed to adequately address the employer's duty to accommodate employees who disclosed their use of prescribed medical cannabis. It was discriminatory under the prohibited ground of disability in the Canadian Human Rights Act because of the zero tolerance standard as it related to employees who used medically prescribed cannabis. She wrote: "[s]imply because Ornge is an air ambulance service, with the inherent safety issues involved in operating its aircraft, is not a sufficient basis for [maintaining] its blanket rule that no one in a safety-sensitive position can be accommodated if they are prescribed medical cannabis."
As for the individual grievance, the arbitrator held that the union satisfied the onus of establishing a prima facie case of discrimination such that the burden shifted to the employer to establish on the balance of probabilities that its discriminatory zero-tolerance standard was a bona fide occupational requirement as set out in the seminal decision of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 ("Meiorin"). Arbitrator Misra all ruled that the employer failed to accommodate the grievor to the point of undue hardship, specifically pointing to the employer's failure to consider his individual circumstances. In this regard, the arbitrator held: " . . the [e]mployer breached its duty to accommodate by not even trying, or permitting the grievor to try, to ensure that he could do the job of AME [aircraft maintenance engineer] safely if he was able to live within Dr. Snider-Adler's [the independent medical examiner's] recommendations."
Ottawa Airport Professional Aviation Firefighters Association v. Ottawa McDonald-Cartier International Airport Authority 2022 ONSC 3298 (CanLII)
In Ottawa Airport Professional Aviation Firefighters Association v. Ottawa McDonald-Cartier International Airport Authority Arbitrator Tom Hodges in the first instance dismissed a policy grievance brought by the Firefighters Association to challenge the alcohol and drug policy adopted by the Airport Authority insofar as the policy permitted unannounced random drug testing of employees in safety-sensitive positions. Specifically, the arbitrator found that the random testing policy was a reasonable exercise of the employer's management rights, given the "obvious safety risks to employees but also to the public" in the public transportation context.
The Association filed an application for judicial review of the arbitrator's decision. A three-judge panel of the Ontario Divisional Court granted the application and set aside the arbitration award, as the Firefighters Association (in its view) had demonstrated that the arbitrator's decision was unreasonable.
Despite the arbitrator's finding that the employer's policy on random drug testing was reasonable and warranted because of safety concerns for employees and the travelling public given the nature of airport operations, the Court decided otherwise noting that the arbitrator failed to give due consideration to "proportionality" or the balancing of the employer's interest in having such a policy and the employee's privacy interests including, in particular, the following:
- The nature of the workplace;
- Justification for the random drug and alcohol testing to address a problem related to alcohol and drug consumption by employees; and
- The degree of intrusion on the employee's inherent right to privacy.
Citing the Supreme Court of Canada's decision in Communications, Energy and Paperwork Union of Canada v. Irving Pulp & Paper 2013 SCC 34 ("Irving") the Court confirmed that, in the balancing exercise, the dangerous nature of the workplace is not an overriding consideration. Rather, as set out by the Supreme Court of Canada: "[T]he dangerousness of the workplace – whether described as dangerous, inherently dangerous, or highly safety-sensitive – is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace."
Although the arbitrator purported to apply the required balancing test from Irving the Court's decision provided that there was "no systematic discussion of legitimate safety concerns related to drug use at the airport, nor [was] there any careful consideration of employees' privacy interest from testing, whether by urinalysis or some other method." The arbitrator concluded that random testing was justified based solely on the dangerousness of the workplace, despite the fact that there was no evidence before him of a problem of employee drug use in the workplace. The Court's decision went on to provide the arbitrator's analysis of the employees' privacy interests "left much to be desired." In the end, the Court ordered that the arbitrator's award be set aside and the matter referred to a different arbitrator.
Employer Takeaways
The case law makes clear that individual cause-based drug and alcohol testing has very different considerations than that of mandatory and random drug and alcohol testing in the workplace. Employers must as a starting point recognize this key difference in conducting drug and alcohol testing. Reasonable-cause testing of an individual employee is a fact specific exercise wherein the employer forms a reasonable opinion, based on specific observations, that a particular employee working in a safety-sensitive position is impaired at work. On the other hand, mandatory and random drug and alcohol testing of employees working in safety-sensitive positions requires the employer to turn their mind to the justification for such testing to address a problem related to drug and alcohol consumption in the workplace and to balance that with the intrusion on the employees right to bodily integrity and privacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
