Drug and alcohol testing for employees in safety sensitive positions continues to be a hot topic for courts in Ontario. A recent decision of the Ontario Court of Appeal has provided the latest word on the ability of employers to conduct random drug testing of their employees. In Imperial Oil Ltd v. Communications, Energy and Paperworkers Union of Canada, Local 900 (May 22, 2009), the Court of Appeal dismissed Imperial Oil’s appeal and upheld the Divisional Court’s ruling that the employer’s policy of random drug testing violated its collective agreement with the union.
Imperial Oil’s Alcohol and Drug Policy was initially challenged at the Ontario Court of Appeal in 2000. At that time, the Court held that Imperial’s random drug testing of employees in safety sensitive positions by urinalysis was prima facie discriminatory because Imperial Oil perceived individuals who tested positive as being disabled by substance abuse. Further, the testing was not a bona fide occupational requirement because a positive test established only past use, and not present, on-the-job impairment. The employer temporarily ceased random drug testing, but eventually resumed it with a saliva swab test that could more effectively disclose current impairment by marijuana. The union brought a policy grievance to challenge this new form of drug testing.
An arbitration board allowed the union’s grievance in part. While it upheld “for cause” and post-incident drug testing, it ordered Imperial Oil to cease random drug testing, finding that such testing violated the collective agreement requirement that all employees be treated with respect and dignity. The board found that it would require clear and unequivocal contractual language in order to conclude that employees had consented to random drug testing, and that no such language was present in this case. Finally, the arbitration board noted that the saliva swab test did not provide an accurate reading of current impairment.
The employer applied for judicial review of the board’s decision. The Divisional Court dismissed the application and upheld the arbitration board’s ruling that Imperial Oil’s random drug testing policy violated the collective agreement. On May 22nd, 2009, the Ontario Court of Appeal agreed with the Divisional Court and dismissed the employer’s appeal.
In this latest decision on random drug testing, the Ontario Court of Appeal makes it clear that the ability of the employer to require employees in safety sensitive positions to submit to random drug testing is limited by the provisions of the collective agreement, and the test’s ability to show current impairment. Random drug testing will only be considered acceptable by the courts when there are reasonable and probable grounds to believe that an employee in a safety sensitive position is working under the influence of drugs.
However, employers are reminded that, even if testing is justified, disciplining an employee after a drug test has shown impairment may be discriminatory if the employee suffers from a disability. Drug and alcohol policies that result in automatic disciplinary action are prima facie discriminatory and are best avoided.