DRUG TESTING in the workplaceKelsey M. Yakimoski, Fillmore Riley LLP

LEGAL CORNER

With the legalization of cannabis, there has been an increasing concern from employers regarding the potential implications of drug use and impairment in the workplace. This concern is applicable to municipalities, as they must comply with the applicable laws governing employment.

As employers have an overall duty to ensure health and safety in the workplace, it follows that they have the right to establish and enforce policies prohibiting the use of alcohol and drugs in the workplace. However, an employer’s power to monitor and enforce said policies is not unlimited. While drug and alcohol testing by an employer seems like a good way to monitor impairment of employees, it is only permitted in limited circumstances. This is due to the fact that employees have a right to privacy. Employers are expected to balance that right with their own right and concerns over workplace health and safety.

Pre-employment and random alcohol and drug testing by an employer are not usually permitted, whereas testing of specifi c employees under the correct set of circumstances is. In a workplace classifi ed as dangerous, employers are entitled to test individual employees who occupy safety sensitive positions 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 signifi cant incident (or near miss), or where the

employee is returning to work after treatment for substance abuse. For example, in UNIFOR Local 1075 v. Bombardier Transportation (Thunder Bay Plant), the employer of an industrial plant was justifi ed in testing an employee for marijuana impairment after a supervisor smelled marijuana and saw the employee exhale smoke.

The leading case with respect to workplace alcohol and drug testing is Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd. (Irving). In Irving, the union challenged the employer’s mandatory random alcohol testing policy that was unilaterally implemented. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. A positive test for alcohol attracted signifi cant disciplinary action, including dismissal. In considering the policy, the Supreme Court of Canada established that in order for random testing to be allowed in a dangerous workplace, there must be evidence of a general workplace problem of substance abuse and it must be a proportionate response that balances the employer’s safety concerns with the employee’s privacy interests. The Supreme Court of Canada upheld the arbitrations board’s decision to strike down the policy, concluding that the employer’s random testing in this case was unjustifi ed as there was no general problem of substance abuse in the workplace.

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Irving was subsequently applied in Teck Coal Ltd. (Fording River and Elkview Operations) v. United Steelworkers, Locals 7884 And 9346, and it was similarly determined that the employer mining company’s random drug and alcohol testing policy was not a reasonable exercise of management rights, as there was no general problem of drug or alcohol abuse in the workplace sufficient to justify the infringement on employee privacy rights.

It is important to note that current methods of drug testing are unreliable, as they are incapable of demonstrating present impairment. Accordingly, a positive result does not necessarily give an employer conclusive proof that an employee was impaired while at work. Rather, a positive result means that the test has detected the presence of the drug being tested for, which establishes prior use and not necessarily present impairment. Therefore, random drug testing may be problematic and an employer may be restricted in trying to use the results solely as cause for discipline. In any event, a positive test may be weighed in the balance with other circumstantial evidence and the circumstances as a whole when considering whether or not to discipline an employee.

Lastly, it is critical that employers fully consider if there are less intrusive means of ensuring a safe workplace, such as substance awareness campaigns or behaviour assessment training, before considering to implement alcohol and drug testing in the workplace. The law in this area remains uncertain and employers could face serious consequences if they are found to have engaged in unjustified alcohol or drug testing of employees.

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61Spring 2019 | Municipal LEADER