Workplace Impairment
By: Kelly VanBuskirk, KC, PhD, C. Arb. and Sean Murphy
Dealing with drug and alcohol addictions
Last week, I sat on a panel with Dan Demers of Cann/Amm Testing Services Inc., a noted expert in workplace impairment, and Norm Keith, the author of Workplace Health and Safety Crimes and Alcohol and Drugs in the Canadian Workplace. Because of my involvement in the Canadian Standards Association’s Technical Committee for the development of a national standard to address workplace impairment (CSA Z1008.1), I am familiar with both experts, and their presentations last week were excellent. I decided that I should share some of the highlights with you.
Here is just a high-level overview of some key concepts that may interest you with respect to your rights as an employer to require drug or alcohol testing.
Overview: The cases of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII) (Irving Pulp), and Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON CA) (Entrop) are the authoritative cases on determining whether an employer’s Drug and Alcohol testing policy is reasonable. In Irving Pulp, the SCC deals with unionized workplaces, while the ONCA in Entrop analyzes non-unionized workplaces from a Human Rights perspective. Both cases are detailed below. The consensus between the two, however, is that there are essentially four different types of drug and alcohol testing policies:
1. Reasonable Cause Testing: this would include testing an individual who an employer has “reasonable cause” to suspect is impaired while working.
2. Non-Random Post-Incident Testing: this involves testing an employee following a workplace mishap or near miss when impairment is reasonably suspected as a cause or testing someone returning from a mandated rehabilitation program.
3. Random Testing: this type of testing is self-explanatory and the most legally controversial.
4. Pre-access Testing: the testing of an individual before they are granted entry to a worksite.
The legality of Reasonable Cause Testing and Non-Random Post-Incident Testing is now considered moot. However, both forms of testing still require employers to conduct a reasonableness analysis before the test, which is a fact-based exercise and can be highly litigious. Random Testing, which is the focus of Irving Pulp, is highly controversial and only considered reasonable in safety-sensitive worksites with evidence of enhanced safety risks, such as provable ongoing drug or alcohol abuse problems. The reasonableness of any such testing is determined using the KVP test, which evaluates the reasonableness of managerial rights in labour cases, or the Meiorin test, which assesses whether such testing violates an employee’s human rights in employment cases. The reasonableness of Pre-access Testing has been considered on the same grounds as Random Testing.
Substantive Case Law
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII) (Irving Pulp)
This case focused on the reasonableness of a Random Drug and Alcohol testing policy unilaterally implemented at a pulp and paper mill. The policy was grieved and made its way to the SCC. Since this policy was unilaterally imposed, it was alleged to have fallen under the employer’s managerial right to govern their workplace concerning matters not addressed in their collective agreement. The scope of a management’s unilateral rule-making authority under a collective agreement is persuasively set out in Re Lumber & Sawmill Workers Union, Local 2537, and KVP Co. 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson). The “KVP test” is that any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union must be consistent with the collective agreement and be reasonable. A balancing of interests approach is used to determine the reasonableness of a rule. The court describes this approach in paras 27 – 29. It was found that:
[30] In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety-sensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse. (See Esso Petroleum Canada and C.E.P., Loc. 614, Re (1994), 1994 CanLII 18668 (BC LA), 56 L.A.C. (4th) 440 (McAlpine); Canadian National Railway Co. and C.A.W.-Canada (Re), 2000 CanLII 29546 (CA LA), 95 L.A.C. (4th) 341 (M. Picher), at pp. 377-78; Weyerhaeuser Co. and I.W.A. (Re) (2004), 2004 CanLII 94658 (BC LA), 127 L.A.C. (4th) 73 (Taylor), at p. 109; Navistar Canada, Inc. and C.A.W., Local 504 (Re) (2010), 195 L.A.C. (4th) 144 (Newman), at pp. 170 and 177; Rio Tinto Alcan Primary Metal and C.A.W.Canada, Local 2301 (Drug and Alcohol Policy) (Re) (2011), 204 L.A.C. (4th) 265 (Steeves), at para. 37(b)-(d)
[31] But the dangerousness of a 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.” This led the originating Board to investigate whether there had been “evidence of enhanced safety risks.” While there were eight documented alcohol-related incidents at the mill from April 29, 1991, to January 11, 2006, the board concluded that these eight incidents over 15 years did not reflect a significant problem with workplace alcohol use. As a result, the board concluded that there was a “very low incremental risk of safety concerns based on alcohol-related impaired performance of job tasks at the site.” The SCC agreed with the Board’s conclusion.
Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON CA)
Entrop concerned an employee subject to a comprehensive alcohol and drug testing policy that targeted employees in safety-sensitive positions. Under the policy, employees were subject to unannounced random alcohol and drug testing. A positive test or other policy violation would lead to automatic dismissal. The policy called for mandatory disclosure to the management of a current or past "substance abuse problem". On disclosure of a substance abuse problem, the employee would be reassigned to a non-safety-sensitive position. Reinstatement to a safety-sensitive position would be permitted only on completing a company-approved two-year rehabilitation program followed by five years of abstinence and signing an undertaking to abide by specified post-reinstatement controls. The employee suffered from alcohol abuse in the early 1980s but had not had a drink for seven years. He disclosed as required and was automatically reassigned. This led him to file a Human Rights complaint on the basis of Handicap. The ONCA’s determination of whether a Drug and Alcohol testing policy violated an employee’s Human Rights rested upon the 3step Meiorin test developed in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. ("Meiorin"), 1999 CanLII 652 (SCC). The Meiorin test determines whether a workplace rule or policy is either a Bona Fide Occupational Requirement (BFOR) or unjustifiably discriminatory.
The three steps to the Meiorin test are:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) 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
(3) that the standard is reasonably necessary to the accomplishment of that legitimate workrelated purpose.
To show that the standard is reasonably necessary, the employer must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. In this case, it was determined that the employer could meet the first two steps relatively easily, as is most often the case, so most of the analysis boiled down to the third step.
The Board and, subsequently, the Court, found that the random drug testing provisions and the pre-employment drug testing provisions failed to satisfy the third step as “[a] positive drug test shows only past drug use. It cannot show how much was used or when it was used. Thus, the Board found that a positive drug test provides no evidence of impairment or likely impairment on the job. It does not demonstrate that a person is incapable of performing the essential duties of the position.” Further, the sanction for a positive test was too severe and not sufficiently sensitive enough to individual capabilities. The random alcohol testing provisions, however, did meet the third step, as breathalyzer testing can show impairment, and the standard used was reasonable to ensure workplace safety so long as an employer meets its duty to accommodate those who test positive. Lastly, the mandatory disclosure, reassignment, and reinstatement provisions did not meet the third Meiorin step, as the disclosure policy was too broad. Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLII 54951 (ON LA)
This summary contemplates Mechanical Contractors Association Sarnia as it reviews Entrop and Irving Pulp and shows how they focus on Pre-Access testing. Using the methods laid out in the Entrop and Irving Pulp cases, Arbitrator Surdykowski found that Pre-Access testing is discriminatory under the Ontario Human Rights Code as it casts too broad a net and is bound to capture employees who are not impaired, performance deficient and who present no workplace health and safety risk; and an unreasonable exercise of management rights as there was no evidence of an out-of-control or indeed any alcohol or drug culture at the work sites in question.
Additional Supportive Case Law
The following cases are all more recent decisions that show Entrop and Irving Pulp are still authoritative on these issues:
Canadian Pacific Kansas City Railway v Teamsters Canada Rail Conference, 2024 CanLII 87118 (CA LA): This case discusses different types of testing and their reliability, as well as the reasonableness of implementing random testing on a singular employee after a “positive” post-incident test result.
GCT Canada Limited Partnership v International Longshore and Warehouse Union Ship & Dock Foremen, Local 514, 2020 CanLII 108870 (CA LA): This case discusses an incident of Reasonable Cause and Post-Incident testing and showcases how the reasonable standard in each situation is assessed.
Mudjatik Thyssen Mining Joint Venture v. Billette, 2020 FC 255 (CanLII) showcases an example of Reasonable Cause testing leading to an unjust dismissal claim.
