Generally, employers are not permitted to interfere with the off duty conduct of an employee or impose any form of discipline for off-duty conduct, with limited exceptions. Case law has found that one of these narrow exceptions is employers requiring random drug testing of employees in professions that are dangerous and pose serious health and safety risks. This is a circumstance where the health and safety requirements of a workplace may justify an infringement of the employees’ right to privacy. There is a delicate balance, as drug and alcohol testing can be incredibly invasive, and may bring up accommodation issues in regard to prescription drug use or addiction. Read on to learn about the limits of workplace testing.
The recent decision in Syndicat international des marins canadiens et Desgagnés Marine St-Laurent inc. (Michael Frégeau), 2020 QCTA 271 (“Syndicat”) brings workplace testing back into the spotlight. In that case, a worker employed as a seaman on an oil tanker was dismissed after failing a random drug test administered by his employer. The test was conducted under the company’s alcohol and drug use policy. The workplace was unionized, and the random drug test policy was incorporated into the collective agreement by reference. The union however decided to bring a grievance for the dismissal arguing that the policy breached employees’ rights to privacy.
In Syndicat, the tribunal held that although there was an infringement of the employee’s privacy rights, this was justified in the circumstances. The adjudicator emphasized how unique the situation was and how working on an oil tanker is a particularly dangerous environment. Crew members must be ready and alert to respond to any number of potential emergencies on an oil tanker, and therefore employees must be deterred from consuming any substances which could impede their ability to effectively respond. The arbitrator found that this was a legitimate reason justifying the random screening, even more so when the employee was aware of the policy.
Balancing Competing Interests
Syndicat was a situation where the justification for random drug testing was sufficient to outweigh the employee’s right to privacy, but this is not always the case. There has to be a balance between the employer’s goals of creating a safe workplace and an employee’s rights to privacy, free from discrimination.
Like in Syndicat, a drug testing policy may be justified in safety sensitive workplaces. Safety-sensitive positions have been described as those where the employee has a role where impaired performance could result in a catastrophic incident affecting individual health and safety, the public, or the environment, and where there is no direct or limited supervision of the employee’s work. (Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.))
The drug testing policy must be proportionate and rationally connected to the performance of the specific job. For example, in Saskatchewan Health Authority and HSAS, Re, 2020 CarswellSask 158 (Sask. Arb.) at paragraphs 52 to 54, a blanket testing policy applicable to the entire workplace was found unreasonable when some positions did not have an elevated level of safety risk or danger.
Substance Abuse As Disability
Human Rights legislation prohibits discrimination in employment on the basis of physical or mental disability. Consequently, the courts have interpreted drug and alcohol dependencies as disabilities entitled to protection from discrimination. Random drug testing policies, and any resulting discipline, may be discriminatory to employees with drug addiction or alcoholism.
An employee’s refusal to take a drug or alcohol test should not automatically lead to the conclusion that an employee’s test will be positive. However, as found in Mielke and Entrec Corp., Re, 2015 CarswellNat 6411 (Can.Adjud.(CLC Part III)) at paragraphs 31 to 38, an employee must be aware that when an employer has made a reasonable request that an employee undergo a drug test in compliance with the company’s policy, adjudicators may uphold discipline or termination for refusal if the employer’s response is proportionate. An employee therefore still has the right to refuse unreasonable or disproportionate requests. Mudjatik Thyssen Mining Joint Venture v. Billette, 2020 CarswellNat 380 (Fed. Ct.) at paragraphs 67 to 68.
Employee’s Rights Versus Employer’s Alcohol and Drug Testing Policy
In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. 2013 SCC 34, 2013 CarswellNB 275, the Supreme Court of Canada laid out requirements of permissible drug testing policies. Based on this, the following drug and alcohol policies would likely be found to unjustifiably breach an employee’s rights:
- Dishonest and bad faith policies unnecessary to fulfilling the legitimate work-related purpose;
- Policies that do not use reputable procedures for analysis;
- Policies that breach confidentiality of medical information and the dignity of the person throughout the process;
- Policies that are not minimally intrusive;
- Policies that do not accommodate people with addictions who test positive, to at least the point of undue hardship to the employer; and,
- Policies that apply automatic consequences after positive tests.
An employer’s request for alcohol or drug testing must be reasonable for it to be enforceable, and it must be proportional and implemented for a safety-related purpose.
If you are facing drug or alcohol testing or discrimination related issues at your workplace, you should contact an employment lawyer to discuss your rights. Monkhouse Law provides free 30-minute phone consultations and can help in assessing your legal options and rights.