Barristers & Soliciotors / Avocats et Notaires
Since 1994 / Depuis 1994
Drug Testing in the Workplace
According to the Prime Minister, Canadians will be legally able to consume marijuana recreationally beginning October 17, 2018. The imminent legalization of this drug raises many questions, including workplace drug testing.
Although the issue of drug testing employees is not a new one, it has moved to the forefront. In Canada, an employer’s right to test employees for drug and alcohol is actually quite limited. In 2013, the issue of random drug and alcohol testing in the workplace was put to the Supreme Court of Canada.
The case in question involved a grievance filed by the union against the employer, Irving Pulp & Paper. Although there was no evidence of an existing alcohol problem, the employer had made the unilateral decision to impose mandatory alcohol testing for its employees in safety sensitive positions. Under the policy, 10% of the employees in safety sensitive positions would be randomly selected for unannounced breathalyser testing over the course of a year. A positive test would lead to disciplinary action, including possible dismissal.
The grievance eventually made its way to the New Brunswick Court of Appeal who found that the interests of the employer and employees were reasonably balanced by the random testing in an inherently dangerous workplace.
The union successfully appealed to the Supreme Court of Canada. The high court began by recognizing that “Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly the case when the workplace is a dangerous one.” Ultimately, the court concluded that Irving had exceeded the scope of the management rights clause under the collective agreement by imposing the random testing given the lack of evidence of an alcohol problem in the workplace.
Although this case involves a union setting, the decision does provide some guidance to employers in general. The court reminds us that mandatory, random and unannounced alcohol and drug testing, even in a dangerous workplace, is an unjustified affront to the dignity and privacy of employees. Therefore, there must be a reasonable cause for drug and alcohol testing, such as general substance abuse in the workplace.
In addition, employers in Ontario who wish to test for drugs and alcohol need to be mindful of the Ontario Human Rights Code. Such testing becomes particularly delicate if you are dealing with an employee who suffers from an alcohol or substance abuse addiction. In such cases, the addiction is likely to be viewed as a disability and if the person with the addiction is negatively affected then the testing may be considered discriminatory.