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Court addresses random drug testing in unionized workplace

By Rhonda Jansen
| www.cos-mag.com

In a decision released on May 22, 2009, the Ontario Court of Appealconcluded that Imperial Oil’s policy of random drug testing ofemployees in safety-sensitive positions at its petroleum refinery inNanticoke, Ontario was a violation of Imperial Oil’s collectiveagreement with the union. The decision is a disappointment to employerswishing to implement random drug testing as part of a program to ensuresafety in unionized workplaces in Ontario.

Background

The background relevant to this decision goes back to 1992, when Imperial Oil implemented an alcohol and drug policy as a component of its health and safety program. The policy included post-incident testing, reasonable cause testing, random testing as part of a rehabilitation program, certification testing and random testing. No trade union or collective agreement was in place at the Nanticoke refinery in 1992. At that time, Imperial Oil used breathalyser testing for its random alcohol testing, and urinalysis testing for its random drug testing.

{mosimage}The random testing provisions of the policy were challenged under the Human Rights Code by an Imperial Oil employee named Entrop. The issue was whether employees with a disability of alcohol abuse or alcohol dependence were discriminated against under the random testing policy. Ultimately, in 2000 the Ontario Court of Appeal in the Entrop case concluded that Imperial Oil’s random alcohol testing policy was permissible. The court went on to note that Imperial Oil’s random drug testing policy (although not technically under consideration by the court) would be considered discriminatory against employees with a disability of drug abuse or drug dependence.

The reasoning was that the breathalyser testing method for alcohol impairment could measure current, on-the-job alcohol impairment, but the urinalysis testing method for drug impairment could not measure current, on-the-job drug impairment (it could only measure past drug use). Since a positive drug test under the policy at that time furnished no evidence of impairment or likely impairment on-the-job, the Ontario Court of Appeal suggested in Entrop that the random drug testing provisions of the policy at that time would violate the Human Rights Code, while the random alcohol testing provisions of the policy did not.

Following the decision of the Ontario Court of Appeal in Entrop, Imperial Oil embarked on an investigation of alternate drug testing technologies to identify a means by which current on-the-job drug impairment, rather than merely past drug use, could be detected. In 2003, Imperial Oil began using an alternate drug testing technology – oral fluid (saliva) drug testing – a method which experts state is able to measure current impairment. In 2003, the union filed a grievance challenging Imperial Oil’s random testing under the policy. A board of arbitration confirmed that “for cause” and post-incident drug testing of employees in safety-sensitive positions were appropriate in a unionized setting, and that random drug testing measures would also be appropriate if they were part of the rehabilitation of any employee clearly identified as having a problem of drug use. The board of arbitration ruled that random drug testing of employees that was not part of a rehabilitation program violated the collective agreement. This is the ruling that was at issue in the current appeal.

Court’s Decision

The Ontario Court of Appeal concluded that it was reasonable for the board of arbitration to rule that Imperial Oil’s random drug testing policy violated the collective agreement. The focus in this case was not on the Human Rights Code, as in Entrop. Rather, since the Nanticoke refinery had become a unionized workplace, the focus was on whether the drug testing policy properly balanced the interests of the employer in managing its workplace, against the interests of the employees, as protected by the collective agreement.

Imperial Oil’s interests were legitimate. One of its primary rationales for wanting to conduct random drug testing was to deter drug use in order to promote workplace safety. It introduced convincing expert evidence before the board of arbitration of reduced drug use in workplaces in the United States following the introduction of mandatory, random drug testing, and convincing evidence of the inadequacy of peer detection of drug impairment as an effective drug use deterrent in the workplace. Imperial Oil also made a compelling argument that its random oral fluid drug testing was analogous to the random alcohol breathalyser testing approved in Entrop.

The union’s interest was to prevent random and speculative drug testing of the bodily fluids of employees, at the will of the employer, at the expense of employee privacy and the right to be treated with dignity and respect.

In balancing these interests, the board of arbitration distinguished Imperial Oil’s random drug testing from its random alcohol testing, since the test results for the random drug testing took a couple of days, while the random alcohol testing permitted immediate detection of impairment. The board of arbitration also reviewed the factual and legal framework in play in several other arbitration cases concerning drug testing in unionized workplaces in Canada, and concluded that several other employers appeared to be maintaining safe workplaces in Canada without conducting random drug testing. Imperial Oil made a compelling argument that the board of arbitration had relied on purported “facts” drawn from other proceedings that were not supported by the evidence before the board in this case. The Ontario Court of Appeal disagreed with Imperial Oil, finding that the decision of the board of arbitration was reasonable.

Given this decision, it will be very difficult for employers to implement random drug testing policies in unionized workplaces in Ontario, except in limited circumstances (such as, for instance, where it could be established that there is an out-of-control drug culture at a particular safety-sensitive workplace). It should be noted that other types of drug testing continue to be permissible, such as post-incident testing, reasonable cause testing, random testing as part of a rehabilitation program and certification testing. It should also be noted that the Ontario Court of Appeal decision does not necessarily represent the law in other Canadian provinces outside of Ontario, and it does not apply to non-unionized workplaces.


Rhonda Jansen  is an Employment Law Partner, with the Toronto office of Gowling Lafleur Henderson LLP

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She can be contacted by email at Rhonda.Jansen@gowlings.com, or by telephone at 416-862-4295. Visit www.gowlings.com.

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