I recently had the pleasure of speaking at the 2010 National Construction Labour Relations Alliance Labour Relations Conference. I participated in a panel that provided an update on drug and alcohol policies. In listening to my co-presenters on the panel (who were speaking from the prospective of being large multi-Provincial and multi-National construction employers) I realized that, while, the law is still in a state of flux as to the extent of alcohol and drug testing, there may be a change in the wind.
While the points from my previous posting are still valid, some recent cases have shed light on what approaches to drug and alcohol testing may be viable without contravening human rights laws.
The key issue is that the intent of your alcohol and drug policy makes a significant difference as whether it can be justified.
For a long time the leading case on alcohol and drug testing was Entrop v. Imperial Oil (2000), 189 D.L.R. (4th) 14 (O.C.A.). In that case, the aim of the employer’s policy was “freedom from impairment.” As a result, any testing that didn’t show current impairment was deemed to be a violation of human rights. For example, if the policy in question is to prevent impairment at the worksite, the only test that would be allowable would be those that work toward that end. So a breathalyser would be justified, but any test that shows past but not current impairment (like most drug tests) would not be.
However, in a more recent case, Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown and Root (Canada) 2007 ABCA 426 the aim of the employer’s policy was to create a safe workplace. As a link between casual drug use and safety could be shown, testing that disclosed offsite use was found to be justifiable. In particular, pre-hire testing for safety sensitive sites was found to be justifiable.
Given that the Kellogg Brown and Root decision is much more recent, and given that the Ontario Court of Appeal in the more recent case of Imperial Oil v. Communications, Energy and Paperworkers Union of Canada, Local 900 (2009), 96 O.R. (3d) 668 (C.A.) elected not to take issue with the Kellogg Brown and Root decision even though it had the opportunity, it seems that the pendulum is swinging away from the first Imperial Oil decision and back towards an approach that would allow for greater testing for drug and alcohol on worksites.
Interestingly, however, the Supreme Court of Canada has refused to hear either the Kellogg Brown and Root or the Imperial Oil decisions and as such we are left without guidance on the issue from our top Court.
Cox & Palmer
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