Background
The legal status of random drug and alcohol testing in Canadian workplaces has been very unclear for some time. It has been accepted that drug and alcohol addiction is a disability within the context of human rights law, and as such, random drug and alcohol testing programs potentially raise discrimination issues because they disproportionately affect addicts. It has also been accepted that drug and alcohol tests are medical procedures which raise individual privacy concerns.
Much of the debate on testing has hinged on whether random drug and alcohol testing exposes drug and alcohol addicts to negative consequences in a way that would violate their rights as persons who have disabilities. The related question is whether workplace safety can justify a violation of an employee’s privacy rights and human rights, and if so, under what circumstances?
In Ontario, the leading authority is Entrop v. Imperial Oil Limited, [2000] O.J. No. 2689 (C.A.), which was a decision of the Court of Appeal for Ontario released in 2000. In this case, Imperial Oil had a comprehensive alcohol and drug testing policy at its two Ontario refineries. The policy subjected employees in safety sensitive positions to ongoing random testing; provided for mandatory testing for all new job candidates as a condition of employment; and imposed random testing for alcohol and specific drugs for all employees. The Court of Appeal concluded that the policy was discriminatory because it exposed addicts to adverse consequences and was not proven to be a bona fide occupational requirement (a “BFOR”).
However, the Alberta Court of Appeal found in 2007 that a random drug and alcohol testing policy was permissible in pre-employment screening. In Alberta (Human Rights Commission) v. Kellogg, Brown & Root, 2007 ABCA 426, the Court of Appeal held that the purpose of drug testing was to ensure safety, not to single out addicts, or to presumptively label every worker as an addict or potential addict. In its reasons, the Alberta Court of Appeal explicitly stated that it was choosing not to follow the Ontario Court of Appeal’s decision in Entrop. Kellogg, Brown & Root’s testing program was found to be acceptable.
To add to the confusion, the New Brunswick Court of Appeal had ruled in 2011 that a random alcohol testing program in a New Brunswick pulp and paper mill was permissible. An Arbitration Board had ruled the testing program illegal, because even though the workplace was dangerous, the employer was not able to prove that there was an actual alcohol problem in its facility sufficient to qualify the program as a BFOR. The Court of Appeal disagreed with the Arbitration Board, finding that an employer was entitled to implement random alcohol testing in any workplace that was “inherently dangerous” without additionally being required to prove an actually existing alcohol problem in the workplace: Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Les Pâtes et Papier Irving, Limitée, 2011 NBCA 58.
Although in this particular case the New Brunswick Court of Appeal was concerned with a unionized workplace, the Court of Appeal observed that the same “inherently dangerous” test should apply to non-unionized workplaces as the threshold test to justify a random alcohol testing policy.
To date, the conflicting jurisprudence has made it difficult for employers to develop drug and alcohol policies. It has been particularly difficult for those employers with operations across Canada, or those with both unionized and non-unionized workforces.
The Supreme Court’s 2013 decision in the appeal of the Irving Pulp and Paper case clarified some issues, but left a great deal of ambiguity to be resolved in future cases.