Canadian Safety Reporter

CANADIAN SAFETY REPORTER Random drug and alcohol testing: Balancing OHS, human rights here is always a balancing act or tension between an employer's interests in protecting its operations and employees from the employee who is impaired on the job, and the employer's obligation to respect its employees' human rights, privacy and dignity. Safety in the workplace may be jeopardized by employees working under the influence of alcohol, illicit drugs, prescription or over-thecounter drugs. While an employer may resort to the implementation of an alcohol and drug policy in an attempt to manage this problem, there are various legal considerations to take into account before doing so. Random drug and alcohol testing in the workplace constitutes discrimination under Canadian human rights law. Disability, as a prohibited ground of discrimination, includes perceived T DANIELLE LEON FOUN LIN ■ LEGAL VIEW and actual substance dependence. An employee testing positive and discriminated against under an employer's policy is entitled to the protection of human rights legislation. In Entrop v. Imperial Oil Ltd., a leading case on alcohol and drug testing in safety-sensitive positions, the Court of Appeal of Ontario tried to explain the balancing act and concluded the following: •The provisions of the company's policy on random alcohol testing, Photo: Todd Korol (Reuters) Suncor Energy's head office in Calgary. Last y ear, the Communications, Energy and Paperworkers (CEP) union filed a grievance over the company's plan to implement random drug and alcohol testing of oil sands employees in safety-sensitive positions. though possibly considered discriminatory, could be justified as reasonably necessary provided the sanctions for an employee testing positive were tailored to his circumstances; •Alcohol and/or drug testing could be justified after a significant work incident and provided there was reasonable cause to suspect alcohol or drug use; •The provisions for mandatory disclosure of current or past substance abuse or dependence and reassignment as a result of disclosure were not justified; •The provisions for post-reinstatement testing were not justified (contrast with Imperial Oil Ltd. and CEP, Local 777 (Parsons), where a board of arbitrators upheld the dismissal for cause of an employee who tested positive for marijuana following his return to work); •Although the court did not decide the issue, it noted that the provisions on random or pre-employment drug testing were problematic, in part because a positive drug test using urinalysis did not demonstrate impairment on the job (unlike a positive breathalyzer reading). Several cases involving alcohol and drug testing have been decided since Entrop. More recently, two cases have refuelled the controversy around such testing. CEP v. Suncor Energy Inc. involves a grievance filed last year by the union over Suncor's plans to implement random drug and alcohol testing of oil sands employeees in safety-sensitive positions. The union sought an injunction preventing implementation of the policy pending the arbitral decision on whether the testing was reasonable. Canadian HR Reporter, a Thomson Reuters business 2013 continued on page 12 11

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