Canada: Drug and Alcohol Testing Policies Upheld By Arbitrator – Keeping Current

Perhaps no current issue in Canadian labour and employment law provokes more discussion and divergent opinion than the issue of drug and alcohol testing. A recent decision of Arbitrator Thomas Jolliffe, Q.C. will no doubt add to the growing discussion as its import could have sweeping implications for worksites in Ontario.

On October 31, 2008, Arbitrator Jolliffe released his decision in United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663 v. Mechanical Contractors Association of Sarnia (Drug and Alcohol Policy Grievance),1 upholding reasonable cause and post-incident drug and alcohol testing policies. Although Arbitrator Jolliffe rendered his decision in the context of a construction industry grievance, his comments on the appropriate scope and tenor of these policies are salient to a wide variety of employers engaged in safety sensitive operations.

THE FACTS

The United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663 (the "Union") filed a grievance against the Mechanical Contractors Association of Sarnia (the "MCAS") in respect of its members' drug and alcohol policies, claiming that: (1) the policies violate the Ontario provincial collective agreement by which the MCAS and the Union are bound; (2) the policies are unreasonable; and (3) the policies violate the Ontario Human Rights Code (the "Code"). The Sarnia Construction Association (the "SCA"), which had developed a model drug and alcohol policy to assist MCAS member contractors in developing these policies, intervened in the grievance and "carried" the case through arbitration. Ogilvy Renault LLP represented the MCAS and SCA in this matter.

At the hearing, Arbitrator Jolliffe was asked to issue an award which would provide industry clarification in respect of the legal rights and obligations surrounding the policies as they pertained to reasonable cause testing (i.e., testing to confirm or deny employee impairment on the job) and postincident testing (i.e., testing following an incident of some significance to determine whether drugs or alcohol were a contributing factor).

THE JOLLIFFE AWARD

Reasonable Cause and Post-Incident Drug and Alcohol Testing

Arbitrator Jolliffe held that reasonable cause and post-incident testing of employees performing "safety sensitive" work is acceptable provided that testing is requested on a basis that is reasonable in the circumstances and is not performed randomly.

Arbitrator Joliffe then proceeded to examine the appropriate language to be used in drafting such policies. With respect to reasonable cause testing, the Arbitrator suggested that language contained in a policy would be acceptable where it indicates "that the company may require at its discretion that testing take place in order to help confirm or eliminate alcohol or drug consumption as a contributing factor where the employer has reasonable cause to suspect impairment by reason of immediate observations concerning employee performance or demeanour." For post-incident testing, language to the effect that "an incident/accident has occurred [and] there is cause to suspect alcohol or drug use by reason of the occurrence itself, observations and surrounding circumstances" would be prudent. Applying this, Arbitrator Jolliffe held that the impugned policies were generally acceptable in that they properly informed and adequately conveyed the workplace rules to employees.

Arbitrator Jolliffe also addressed the implementation of reasonable cause and post-incident testing in practice and strongly cautioned that it was "largely fact driven on the individual circumstances." He noted that many of the guidelines for the implementation of reasonable cause testing could be delineated from the applicable jurisprudence, but provided little elaboration on this point except to say that such guidelines would include the need for actual supportable observations which realistically present some suspicion of working while under the influence. It seems clear, however, that a reasonable cause test will be triggered where the employee exhibits physical characteristics such as glassy eyes, or the smell of alcohol, slurred speech, etc.

A post-incident test can be ordered following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred. However, Arbitrator Jolliffe clearly articulated that post-incident testing should occur only where the condition of the employee is seen as a reasonable line of inquiry. In order to meet this test, there must be a connection between the employment and the incident, along with evidence that the employee's act or omission contributed to the incident. Furthermore, some consideration must be given to whether the testing would assist in the investigation.

Automatic Penalty Provisions

Arbitrator Jolliffe held that any policy stipulating automatic termination or immediate removal from a worksite for an employee testing positive for drugs or alcohol "cannot prevail and should be rewritten." Automatic penalties must instead be subject to reasonableness, as well as the just cause provisions of the applicable collective agreement.

Human Rights Obligations

In rendering his decision, Arbitrator Jolliffe referred favourably to the jurisprudence holding that freedom from both drug and alcohol impairment constitutes a bona fide occupational requirement in the context of reasonable cause and post-incident testing. He also made it clear that the impugned policies did not perceive a "casual user" as being dependent, thereby suffering from a disability and requiring accommodation under human rights legislation.

The Sarnia Cranes Decision

The Union advanced an argument that the Ontario Labour Relations Board's decision in Sarnia Cranes, [1999] OLRB Rep. May/June 479 definitively declared that reasonable cause and post-incident testing was unlawful. Arbitrator Jolliffe held that Sarnia Cranes was no longer "helpful" law, finding that the applicable jurisprudence has become significantly developed since its release and that the concern raised over urinalysis not being able to conclusively show impairment at the time of a test was not determinative of the issue. Rather, Arbitrator Jolliffe opted to follow the line of jurisprudence which has found that because a positive drug reading does not confirm impairment at the time the urine sample was taken, any rule which mandates automatic discharge, or any disciplinary consequence, is unreasonable. However, the test itself is an important tool for its corroborative value in the face of other compelling evidence of impairment. Of course, a negative test would end the inquiry.

MESSAGE FOR EMPLOYERS

Arbitrator Jolliffe's decision provides Canadian employers with key insight into the drafting and implementation of drug and alcohol testing policies. The quick crux of the award is that employers are permitted to institute reasonable cause and post-incident drug and alcohol testing in order to protect the safety of their workforce, the public and their operations. However, such testing is typically permitted only for employees occupying "safety sensitive" positions and where circumstances exist that legitimately justify testing. It must not be applied so arbitrarily as to become random testing.

Furthermore, these policies must include language which provides for the general circumstances and purpose of such testing. In determining whether to demand a reasonable cause or post-incident test, employers should remember that their testing demand could be subject to third party review and should thus be prepared to justify their position. For example, adjudicators would likely require an employer to show that it had ruled out obvious causes of an accident or near miss (e.g., mechanical failure) before permitting it to require the employee to submit to a post-incident test.

Where a reasonable cause or post-incident test result is positive or where an employee refuses to undergo such a test, it is important that employees are aware their actions may lead to disciplinary action, up to and including termination. However, blanket policies or practices which call for automatic termination or site bans cannot prevail and must be rewritten. Moreover, it is important to note that where an employee does suffer from an alcohol or drug dependency, the disciplinary process should be approached with sensitivity to the employer's human rights obligations to accommodate the employee, since he or she may be deemed to suffer from a "true" disability under the Code.

What the Jolliffe award makes clear is that drug and alcohol policies, written or in practice, must fall in line with the aforementioned requirements, otherwise they could be challenged and struck down. Accordingly, it is imperative that employers review their drug and alcohol testing policies for any provisions that could be challenged at law.

Footnote

^{1. [2008] O.L.A.A. No. 621 (Jolliffe).}

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