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A disappointing decision for employers on random drug testing was released by an Ontario Board of Arbitration on December 11, 2006. The Board, chaired by Michel Picher, declined to allow random drug testing at Imperial Oil in safety sensitive positions. Many had hoped that new technology and a test that could detect impairment at the time of testing would enable random drug testing to be introduced in safety sensitive work environments. The decision is currently under review.

As a result of a finding by the Ontario Court of Appeal in 2000, in Entrop v. Imperial Oil,[1] that Imperial Oil's random drug testing policy breached Ontario's Human Rights Code, Imperial Oil suspended its random drug testing program. At that time, urinalysis was the testing method used by the Company. The Court of Appeal concluded that drug testing by way of urinalysis was flawed as it was unable to measure present impairment; rather, such testing could only provide proof of past drug use. In other words, the test could not detect actual impairment at the time of testing. As a result, the Court held that random drug testing could not be justified as "reasonably necessary" to accomplish the employer's goal of a safe workplace free from impairment and concluded that such testing was unlawful.

The Court did, however, distinguish random drug testing from random alcohol testing on the basis that breathalyser tests could, in fact, detect present impairment due to alcohol. Ultimately, random alcohol testing was upheld by the Court of Appeal as reasonable for employees in safety sensitive positions.

In the summer of 2003, approximately three years after suspending its random drug testing program, Imperial Oil resumed random drug testing for safety sensitive positions. Instead of urinalysis, the Company used a newly developed "buccal swabbing" (saliva swab) technique, which could measure cannabis impairment at the time of testing. The Communications, Energy & Paperworkers Union of Canada, Local 900 filed a policy grievance.

Despite the recognized highly safety sensitive workplace, the majority of the Arbitration Board allowed the Union's grievance, and ordered that the random drug testing using saliva swabs be stopped.

While the majority agreed that buccal swabs did accurately show drug levels in the body at the time of testing, unlike a breathalyser, the result of the test could only be revealed many days later when the laboratory process was completed. This delay in the availability of test results led the majority to observe that while management was awaiting the results of the test, a potentially impaired employee was sent back to continue working in the safety sensitive environment. Based on these operational concerns, the majority rejected the argument that the buccal swab test was "reasonably necessary" to ensure workplace safety.

Chair Picher further stated that:

.subjecting all employees to random drug testing by means of a buccal swab test simply cannot be reconciled with the well established, predominant Canadian arbitral jurisprudence which holds that, in a safety sensitive working environment, drug and alcohol testing can be required of an individual employee by his or her employer only where there is a reasonable and probable cause to do so, or where there has been an accident or incident which would justify such a measure.

He went on to note that this was particularly true in the case before the Board as the collective agreement at issue contained an express provision which committed the Company to a workplace "where individuals are treated with respect and dignity." The majority of the Board found that subjecting employees to random drug tests was not consonant with the "respect and dignity" called for by the collective agreement.

In its analysis, the majority made reference to the need to "balance the interests" of the workplace parties, which balancing approach was at the heart of the arbitral jurisprudence. In balancing the interests of the workplace parties, the majority noted, arbitrators had recognized the need to ensure safe workplaces as a valid interest of employers, and consequently, had consistently sought to "allow employers that margin necessary to ensure safety while preserving to employees, particularly to employees who have given no reason for suspicion of impairment, a modicum of dignity and privacy." Acknowledging that deterrence was also a valid interest that should be factored into the "balancing of interests" equation, the majority nevertheless found that, in the circumstances of this case, there was no evidence of a drug problem in the workplace which would justify resorting to random testing.

The majority of the Board did accept, however, that the "balancing of interests" approach could allow for unannounced, random drug testing in some extreme circumstances, such as where an employer could present evidence of an "out-of-control drug culture taking hold in a safety sensitive workplace."

As this Board of Arbitration decision on the legality of random drug testing in safety sensitive positions at Imperial Oil is currently under review, it is too soon to say whether or not such testing will ultimately be allowed in Canada. In the meantime, arbitrators may choose to follow this decision on the issue. If that occurs, arbitrators will likely refer to five principles articulated by Michel Picher, which he describes as comprising the "Canadian model" for alcohol or drug testing in a safety sensitive workplace. It is noteworthy that, at least with respect to random alcohol testing, the principles as articulated by Michel Picher appear to run counter to the decision of the Ontario Court of Appeal in Entrop. The principles enunciated by Arbitrator Picher on behalf of the majority are:

• Unless a contract or a collective agreement gives the employer the right to require random testing, no employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
• An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
• It is within management's rights to require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.
• Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee's program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
• The cases generally recognize that an employee's refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer's drug and alcohol policy, and may itself be grounds for serious discipline, including dismissal subject to the just cause principle and the duty to accommodate alcoholism or drug-dependent employees.

It is nevertheless noteworthy that the Board of Arbitration decision did not remove Imperial Oil's ability to continue its long-standing practice of conducting random alcohol testing of employees in safety sensitive positions.

In conclusion, it is too early to say whether this decision will be followed by other arbitrators or overturned by the courts. However, it is important to point out that the decision does not ban drug testing in the workplace. Moreover, it does provide for the possibility of random drug testing being permissible, albeit only in extreme circumstances.

[1]. (2002), 50 O.R. (3d) 18 (C.A.).

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2007 - All Rights Reserved

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