The latest on the legality of random drug and alcohol testing

March 6, 2018 Doug MacLeod, MacLeod Law Firm Employee Relations, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Union Relations

Drug Test

In 2013, the issue of whether an employer can unilaterally implement random drug testing was addressed by the Supreme Court of Canada. Bottom line: there are very few instances when random drug testing will be permitted.

This blog summarizes a recent arbitration award where a union challenged an employer’s random drug testing policy at a coal mine.

The facts

The arbitrator found that anyone working in mine operations, the mine maintenance department, and in the coal plant was involved in a safety-sensitive job.

Further, he found that the work and surroundings involved in all three of these operations required employees to maintain a continuing alertness so that they did not cause an accident that might injure themselves and/or another employee, or were not injured by someone else’s carelessness.

In 2012, the employer unilaterally implemented random drug and alcohol testing that required employees to, among other things, provide breath or urine samples. If there was a positive result then the employee was required to meet with an addiction specialist and disclose personal health information.

The issue

The issue in random drug and alcohol cases is how to resolve the conflict between an employer’s interest in making their workplaces safe, and an employee’s interest in protecting their privacy.

The test

1. Have employees’ privacy rights been infringed?;
2. If so, is there sufficient or adequate cause to justify the search and seizure and resulting privacy intrusions represented by random testing?; and, if so,
3. Is random testing a proportionate response to that “demonstrable workplace problem”?

The decision

After a 39 day hearing, the arbitrator concluded:

1. Random drug and/or alcohol testing is a prima facie privacy violation
2. The fact that an employer’s workplace is dangerous does not, in and by itself, establish a legitimate need for random drug and alcohol testing. There was no evidence of a “demonstrated workplace problem” or “a general problem with substance abuse in the workplace.” In this regard, in the five years leading up to the random testing, the number of positive tests were relatively low for post-accident testing; averaging between one and two positive post-incident drug tests per year.
3. Neither a positive breathalyzer test at .02% BAC nor a positive urinalysis test for the presence of cannabis or cocaine metabolites establishes that an employee was under the influence of, or impaired by, any of those substances. Such positive tests only establish that the employee has used those substances in the past, not that he was impaired at the time of the test.

The arbitrator also noted that no evidence was led on whether or not there were any less intrusive means of measuring impairment that would be equally as effective such as “computer-assisted employee performance testing” which is more commonly known as “impairment testing.”

Lessons to be learned

1. It is possible but extraordinarily difficult for an employer to prove that a random drug and alcohol policy is legally permissible
2. Unionized employees will often grieve the policy under the applicable collective agreement, and non-unionized employees can file an application under human rights legislation.
3. The onus is on the employer to justify the need for the policy.
4. The employer must demonstrate an actual problem with substance abuse in the workplace; not a theoretical problem.
5. The employer’s testing protocol should prove impairment; not use.

• About
• Latest Posts

Follow me

Doug MacLeod, MacLeod Law Firm

Employment and labour lawyer at MacLeod Law Firm

For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca. Read more

Follow me

Latest posts by Doug MacLeod, MacLeod Law Firm (see all)

• Wrongful dismissal update: Judge upholds just cause termination for a 30 year employee who touched a co-workers buttock - February 11, 2020
• Termination clauses: (Yet) another one bites the dust - January 7, 2020
• Doug’s top 5 employment law stories of 2019 - December 10, 2019

alcohol and drug use in the workplace, drug and alcohol testing, employment law, random drug and alcohol testing

Recent report of the Standing Committee on Access to Information, Privacy and Ethics Employee benefits: Government health insurance and employer benefit plans