Although most reviews of legal issues facing employers focus on testing, there are other decisions that impact a variety of issues employers face when dealing with alcohol and other drugs. The key cases impacting an employer’s decisions are outlined below. This is not legal advice but simply an overview of the key decisions.

1. Human Rights Context: Supreme Court Decision

• Federal and Provincial Human Rights legislation prohibits discrimination on the basis of a disability. Current or former dependence on drugs or alcohol is considered a disability under the federal Act, and may be interpreted in the same manner at the provincial level. Issues around reasonable accommodation, and establishing a bona fide occupational requirement for treating someone differently need to be addressed in a workplace policy. Prevention initiatives including access to assessment, assistance, treatment, and follow-up services, as well as modifying hours or duties in certain circumstances would all contribute to accommodation. Setting standards that respond to an assessment of need specific to the company’s requirements and ensuring there is justification for treating individuals differently under certain circumstances would contribute to meeting the bfor standard.
  
• The Supreme Court has helped clarify an employer’s obligations when it comes to setting standards that some might consider discriminatory. The company is expected to establish those standards as a bona fide occupational requirement, and to do so must meet three tests. The tests are:
  
• Was the standard adopted for a purpose rationally connected to the performance of the job?
• Did the employer establish that it adopted the standard in an honest and good faith belief that it was necessary for the fulfillment of that legitimate work-related purpose?
• Did the employer establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose? - and to meet this test, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.

  The Supreme Court set out the tests and employer must meet in order to establish a bfor in British Columbia (Public Service Employee Relations Commission) v. British Columbia government Service Employee’s Union, SCC file No. 26274, September 9, 1999 (Meiorin) accessible at:
  http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0003.html

  These were confirmed in British Columbia superintendent of Motor Vehicles v. British Columbia Council of Human Rights, SCC file NO. 26481, December 16, 1999 (Grismer) accessible at:
  http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0868.html

• These tests were used by the Ontario Court of Appeal to review the Imperial Oil policy in Entrop, the Elizabeth Metis Settlement decision in Alberta, the Autocar Connaisseur decision of the Federal Human Rights Tribunal (all noted below), as well as in subsequent arbitration decisions.
  
• These requirements clearly reinforce the fact that how and employer determines what should be in their policy is just as important as what is ultimately in the policy. First, there must be a good faith assessment of need, so that the employer will be able to establish a policy that responds to their own stated and unique requirements, and ultimately and logically explain that policy to those who are affected. And there must be appropriate accommodation for those who may have a problem.

2. Due Diligence/Negligence Obligations: A series of court and arbitration decisions have clarified that:

• Employers have responsibility for any individual who is unfit on the job – they can not simply “send them home” but must ensure proper escort procedures are followed so the individual does not injure him/herself or a third party.
  
• Employers have a responsibility to any individual that they host in a social or business hosting situation where alcohol is served. They must ensure proper hosting procedures are followed to minimize the possibility that anyone served alcohol may injure him/herself or a third party after a company event. If the employer provides the alcohol, provides the premises, or hosts the event, they can be responsible for the outcome.
  
• Employers are vicariously responsible for the actions of their employees
  – even though they may not be at fault. This includes impaired employees on the job, impaired employees on a client job site, and impaired employees operating a company vehicle. As a result, employers need to set clear standards on what is expected and actively ensure those standards are being met.

For example, the owner of a vehicle is accountable for any injuries or damages caused by a person driving the vehicle with the owner’s consent, even when operating the vehicle on the person’s private time. This is why company policy standards must apply when operating a company vehicle, and why policies should address reporting and consequences of receiving an impaired driving charge in this situation.

• Occupational Health and Safety legislation places the onus on employers to ensure the health, safety and welfare of employees; employers must prove diligence in minimizing or eliminating all potential safety risks, including those associated with independent contractors. Organizations can be liable for any negligent or wrongful acts committed by an employee acting within the scope of, or course of employment, which could include negligence in allowing an alcohol or drug impaired employee on the worksite or on a public highway once declared unfit to work, and negligence when returning someone to a risk-sensitive job after treatment or a policy violation where sufficient monitoring mechanisms are not in place and a substance-related incident results.
  
• Reinforcing these safety obligations, Bill C45 which has been enacted in law establishes rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives. There is a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public.

  There is no change in the current law regarding personal liability of directors, officers and employees; the new Act deals with the criminal liability of organizations. In essence, OHS criminal negligence is established where the organization or individual, in doing anything or in omitting to do anything, that is its/his/her legal duty to do, shows wanton or reckless disregard for the lives or safety of others.

  There have been no cases at this point, but it is expected that this legislation will impact how organizations deal with substance abuse issues, and apparently there is no due diligence defence – only a criminal defence. However, the lawyers advise having a clear well communicated policy, ensuring supervisors are trained and have the tools and support to act to prevent workplace problems, and taking all responsible steps to minimize the risk of accidents associated with alcohol or drug use would help with that defence.

3. Balancing Human Rights and Due Diligence

• The Courts and arbitrators are beginning to recognize that company policies need to find the right balance between due diligence and respect for human rights and privacy. In alcohol and drug policies this would mean a balance between initiatives to control or deter inappropriate use (rules, investigative tools and consequences) and preventative components (education, training, assistance and aftercare programs).

  As noted above, a series of decisions have confirmed the onus is on employers to ensure the health, safety and welfare of employees; employers must prove diligence in minimizing or eliminating all potential safety risks, including those associated with unfit individuals on the job, safely operating company vehicles, hosting events where alcohol may be service, and obligations towards the safe operation of independent contractors.

• A key decision by the B.C. Court of Appeal put this into perspective. The Court examined a company’s obligations to accommodate someone with mental disabilities when the individual held a safety-sensitive position and could put clients and the public at risk. In overturning the decision of the B.C. Human Rights Tribunal which had found in favour of the complainant, the Court stated the following in their decision:

  “The value of human rights legislation is great and the courts accord more than usual deference to decisions of human rights tribunals. Human rights legislation, however, fits within the entire legal framework within which enterprises must function. That framework includes other standards that also reflect deep values of the community such as those established by workers’ compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence, for example the standard that applies to Oak Bay Marine Ltd. for its clients.

  Even as full adherence must be given to the standards of human rights, a human rights tribunal must be mindful of the fuller legal framework regulating an enterprise when it assesses the occupational requirements asserted by that enterprise, and decide in a fashion harmonious with that framework in order not to force non-compliance with some legal obligations in exchange for compliance with the human rights legislation.”

Oak Bay Marina Ltd (Painter’s Lodge) and B.C. Human Rights Tribunal, and Robert Gordy, Court of appeal for British Columbia September 10, 2002. The decision can be accessed at:
http://www.lancasterhouse.com/decisions/2002/sept/bcca-gordy.htm

• This decision was issued during the Autocar Connaisseur hearing.

4. Key decisions and Positions of Human Rights Commissions on the issue of Testing

There is considerable controversy about the legality of drug testing programs. Concern centres on the employee’s right to privacy and the potential for discrimination based on a disability. Workplace testing programs could be challenged through a variety of routes.

• in a non-unionized environment the most likely route would be to a human rights commission (either policy-wide or individual), or a wrongful dismissal action.
• in a unionized environment, management's right to introduce a testing program in general may be grieved if it is believed to be contrary to the collective agreement, or a union may grieve the company’s actions under their policy on behalf of an individual member
• in addition to the above, in a government setting, a challenge under the Charter of Rights and Freedoms could be launched (the Charter does not apply to the private sector).

  At present, there are no provincial or federal laws that have been passed which would specifically prohibit drug testing, and there has been no Supreme Court decision in this area. However, a series of arbitration decisions a recent Ontario Court of Appeal decision, and some Human Rights rulings provide some guidance on where the law may stand on this issue. The following overview presents an evolution on the issue to where it appears to stand today.

i. Human Rights Decision: Entrop and Imperial Oil

• This was the most comprehensive Court decision on a workplace policy and testing program as of 2000 and formed the basis for the federal and a number of provincial human rights policies. It was triggered through a complaint against the Imperial Oil policy by an employee who held a safety-sensitive position and argued he was discriminated against because of a past alcohol problem. At this point, the Oak Bay decision had not been issued, but the Meiorin Supreme Court decision was issued before the Court of Appeal review.
  
• An Ontario Human Rights Board of Inquiry initially provided a ruling on the case, including direction on the complete company policy. The Ontario Court of Appeal subsequently ruled the Board only had jurisdiction to decide on the parts of the policy dealing with alcohol issues since the original complaint had been focused on his treatment because of a past alcohol problem. They issued an order confirming approval of the alcohol testing parts of the policy.
  
• This was the first time the Supreme Court test was used in reviewing a workplace policy. The Ontario Court of Appeal upheld the company’s right to set standards and the right to trigger discipline, although it would not accept termination in every situation stating a case by case assessment of consequences was needed. The Court also upheld the right to determine if someone had a problem in the past 5-6 years (not indefinitely) and the right to remove the individual from the job until safe to return, but said this also had to be case by case.
  
• Alcohol testing was accepted in reasonable cause, post incident, certification (to a safety-sensitive position) and on a random basis after assignment, as well as in return to duty situations. Although the Court commented that drug testing would be acceptable in all but a pre-employment and random situation, it did not make a ruling (Entrop’s complaint was against the alcohol testing part of the policy). In other words, the Court commented that testing was acceptable consistent with the original Board of Inquiry decision in a reasonable cause, post incident and return to duty/follow-up situations. The Court also agreed with drug testing as a condition of certification to a safety-sensitive position for new hires and existing transfers.
  
• The comment against random and pre-employment testing was that because urinalysis does not prove impairment at the time the sample is taken it does not meet the Supreme Court’s bfor test in these situations. The company stopped its pre-employment testing program, focusing only on certification testing for safety-sensitive positions, and put the random drug testing component on hold (random alcohol testing, and testing in all other circumstances continued). The company extensively examined alternative technologies and concluded saliva testing better meets the Court’s concerns about impairment. Random drug testing using oral fluid (saliva) technology was introduced in July 2003. It is subject to an arbitration review in Ontario starting in November 2004; no other complaints have been received.

  Entrop and Ontario Human Rights Commission v Imperial Oil Ltd, Ontario Court of Appeal, July 2000. The decision can be accessed at:
  http://www.ontariocourts.on.ca/decisions/2000/july/entrop.htm

ii. Commission Policies

• In June 2002, subsequent to the Entrop decision, the Federal Commission reviewed its policy on testing, and took a position that somewhat mirrors the decision, but not totally. It was tested before a Tribunal in the Autocar Connaisseur/ Milazzo hearing, and not upheld, in that the Tribunal favoured the company’s policy and ruled they were not bound by the Commission’s statement.
  
• The Alberta and Ontario Commissions revised their policies shortly after the Entrop decision was issued by the Court of Appeal; they are similar to the federal policy. New Brunswick, Prince Edward Island, and Saskatchewan have recently issued similar policies or guidelines, and none of the other provinces have issued formal policies.
  
• A summary of each of these position papers is provided separately, with web connections to the full text.

iii. Court of Queens Bench of Alberta Decision: Elizabeth Metis Settlement

• This decision dealt with the case of two administration officers whose employment was terminated for failure to comply with the settlement’s alcohol and drug testing program. The issue of safety did not contribute to the decision when it came to assessing whether the bfor requirements were met.
  
• The Court found that a policy requiring employees to be tested where potential consequences of a positive includes loss of employment treats them as if they were disabled and is a violation of the Human Rights, Citizenship and Multiculturalism Act. Likewise termination for refusal to be tested would be a violation on the basis that the employee is perceived to be disabled.
  
• However, the Court found that if testing is a bfor, the prohibition against discrimination does not apply. Using the Supreme Court’s tests, they concluded the bfor is met by the Settlement as the employer implemented the policy in response to a unanimous vote of members in response to ongoing concerns about a serious drug and alcohol problem, including with employees. “The policy creates a bona fide occupational requirement for Settlement employees to set a positive standard for the community as well as addressing safety and performance concerns.”
  
• The Court concluded that an expectation of exemplary behaviour by Settlement employees by remaining alcohol and drug abuse free was a purpose rationally connected to employment performance, the policy was adopted in good faith, and the Settlement policy was reasonably necessary for the accomplishment of a legitimate work related purpose. The Alberta Commission’s policy “overstates the conclusion of the Ontario Court” and does not have a force in law, the bfor requirement does not have to relate to job safety or performance (these were simply a function of the IOL case), other options had been tried by the problem continued, the possibility of testing would result in employees more likely to report to work in a sober condition, treatment was offered to those who failed the test, assistance was available for anyone with a problem, and there is no requirement to offer rehabilitation to someone who simply refuses to be tested.

  The decision was issued in April 2003 and was appealed. The original decision can be accessed at:
  http://www.albertacourts.ab.ca/jdb/1998-2003/qb/Civil/2003/
  2003abqb0342.pdf

The Alberta Court of Appeal examined whether the policy was properly applied when the two complainants were tested, assuming the policy itself is valid. The policy does not provide for blanket testing, only testing in specific circumstances including after an accident or near miss, or ‘periodic or site specific” circumstances which the Settlement argued was the trigger in this situation. The original Panel and the reviewing judge (judgment above) looked at the issue of discrimination, and not whether the policy was properly
applied.

The Court noted that periodic or site specific testing was only to be applied where, due to the nature of sensitive work assignments, someone’s job duties could affect personal safety, co-workers safety, the safety of the public or the safety of the environment. Both complainants had administrative positions; one rarely drove a vehicle and the other drove short distances a few times a week. The Court concluded although there is an element of safety in all jobs, their work did not meet the elevated safety standard.

The Settlement argued that the reason for the policy was partly to ensure staff acted as role models for the community, however there is nothing in the policy that states this is a trigger for testing; this explanation can not justify a past demand for testing.

The appeal was allowed, and the case returned to the human rights panel to determine what procedure to follow now that the demand for testing these individuals could not be justified. The Court’s decision is at: http://www.albertacourts.ab.ca/go.aspx?tabid=12&
retn=/isysquery/irl238/21-30/list

iv. Federal Human Rights Tribunal Decision: Autocar Connaisseur

• This was the first Tribunal ruling since the TD Bank case several years ago. The Commission’s former policy was in force at the time of Milazzo’s dismissal for failing a “pre-employment” drug test to qualify for U.S. work. He had previously worked for the company and in fact had crossed the border, but was not subject to the random testing program. The Commission requested that the Tribunal refer to their new policy,
  and Coach Canada (Autocar’s parent company) requested that, in that case, the Tribunal refer to the company’s new, more comprehensive policy as well. The Coach Canada policy which was before the Tribunal covered all employees, and placed all drivers and mechanics (who all have to road test the vehicles) in the safety-sensitive category whether they operated into the U.S. or not. This includes transit and school bus drivers.
  
• Milazzo’s complaint before the Tribunal was that he had been discriminated against because the company perceived he was dependent when they terminated his employment after a positive drug test result. The Tribunal concluded Milazzo did not meet his burden to establish that he suffered from a disability, or that he was perceived to be disabled by Autocar, and his section 7 complaint was dismissed.
  
• Regarding the company policy, the Tribunal ruled that Autocar’s drug testing policy discriminates against employees who are drug dependent since anyone who tests positive is either not hired, or their employment is terminated, and some of those people will have a substance-related disability. They looked at whether the requirement not to have drug metabolites in one’s system is a bona fide occupational requirement for bus drivers in light of the Supreme Court’s three tests and concluded:
  
• since the purpose is prevention of employee impairment, the goal of Autocar to promote road safety by preventing driver impairment is rationally connected to the business of providing bus transport;
  
• the company more than satisfied the good faith requirement in the promulgation of its drug testing policy, given the lack of direction from Transport Canada, and the need to comply with U.S. requirements within the Canadian legislative framework;
  
• in terms of reasonable necessity, urine testing for the presence of cannabis metabolites does assist in identifying drivers who are at an elevated risk of accident and the presence of a drug testing policy will serve to deter at least some employees from using alcohol or drugs in the workplace, in a manner that would put themselves or others in danger; but
  
• the employer has a duty to accommodate anyone who tests positive on a random or pre-employment test and has a problem by referring them for assessment and accommodating their problem up to undue hardship.
  
• The decision was not appealed by the Commission, but they requested a further meeting with the Tribunal in June 2004 regarding the utstanding resolution on accommodation. At that time they tried to request further changes in the policy, specifically that the safety-sensitive provisions including random testing be limited only to regular drivers and not occasional drivers, and that the consequences for a policy violation be a follow-up agreement including unannounced testing, but that failure to abide by the agreement would not trigger any negative consequences.

  Salvatore Milazzo and Canadian Human Rights Commission, and Autocar Connaisseur Inc. (Coach Canada), Federal Human Rights Tribunal, November 6, 2003. Decision can be accessed at:
  http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=
  502&lg=_e&isruling=0

• On January 28, 2005 the Tribunal issued a subsequent decision confirming:
  
• that they had in fact addressed the broader Coach Canada policy in their decision, which upheld pre-employment and random alcohol and drug testing for bus drivers in all categories working for the company, and not just those assigned to U.S. routes;
  
• that the definition of “safety-sensitive position” did not need modification, and can include mechanics who operate a bus from time to time to road test it (the Commission had requested that SSP only apply to drivers “not under regular supervision” which would mean mechanics could not be included);
  
• because the scope of the case was limited to safety-sensitive positions, there was no ruling on whether testing of other employees is reasonably necessary;
  
• the provisions in a last chance agreement after an individual has failed a test and is found to have a dependency need to leave the consequences of a second violation flexible and determined on facts specific to the case – the word “will” was changed to “may” when it comes to automatic termination in this case. Termination may be warranted, but must be concluded on a case-specific basis; and
  
• the concept of accommodation has its limits, and the employer is not subject to an endless rehabilitation process. The decision can be accessed at:

  http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=586&lg=_
  e&isruling=0

v. Other Human Rights Hearings

• Federal Human Rights Tribunal - TD Bank: Some years back, in a three way split decision, the Federal Court of Appeal ruled against the Toronto Dominion Bank’s pre-employment testing program. One justice supported it, but the two others did not, although for different reasons. One did say that had it been a safety-sensitive environment, his decision may have been different. The Bank did not appeal the decision to the Supreme Court and stopped their pre-employment testing program.
  
• Alberta Human Rights Panel – Chiasson v. Kellog, Brown and Root: In the first human rights decision to reference the Milazzo ruling, in a hearing before the Alberta Human Rights Tribunal, KBR’s decision to withdraw an offer of employment to an applicant for a high risk position on a client’s site was upheld. The individual tested positive and had started working, but was in the probation period and the condition of hire included passing a medical and a drug test. The individual said he did not have a problem, and there was no evidence of perceived discrimination. The tribunal looked at the situation in light of the Supreme Court tests as well. Although the company’s actions were supported, the tribunal ruled that had the applicant established evidence of a disability, real or perceived, the withdrawal of an employment offer would have been discriminatory and the third element of Meoirin would not have been totally met. (June 2005) It can be reviewed at:

  http://www.albertahumanrights.ab.ca/legislation/panel_decis_
  2005.asp

• Alberta Human Rights Panel – Halter and Ceda-Reactor Ltd.: This decision drew on the Supreme Court bfor tests, as well as the Entrop and Milazzo rulings. Halter worked in a safety-sensitive position on a client’s site in the oil sands. The company policy includes testing, but random testing is only for cross-border drivers. On the basis of safety concerns and indications a number of employees were using drugs and alcohol on site, a decision was made to test an entire work team for “reasonable suspicion”. Half tested positive, were given two week suspensions and offered assistance if they had a problem. They were retested and only Halter tested positive again. Offered an opportunity to take another test at his expense, he declined and was terminated. The Panel found insufficient emphasis was put on the policy at time of hiring, but a signed acknowledgement form confirmed he knew there was one. It was established he was a casual user and although there was no evidence Ceda had assessed any need for accommodation, neither had Halter established he had a problem, therefore, he did not qualify for protection under the Act.

  The testing did not meet the reasonable cause standard, and thus the blanket random test indicated all members of the crew were perceived to be substance abusers. Halter was discriminated against on the basis of a perceived disability, the testing was discriminatory, and their program did not have the range of components needed to meet requirements set in Entrop. The company did not meet the court tests: introducing a policy solely because others in the industry were doing this, and because a client required it was not sufficient. Further there should have been a written record he had been offered assistance, and he should have been accommodated in a non-sensitive position until he had a negative test; Ceda is a large company and did not accommodate to the point of undue hardship.

  A further decision on remedy will be issued. The decision can be
  viewed at:

  http://www.albertahumanrights.ab.ca/legislation/panel_decis_
  2005.asp

vi. Arbitration Trends

• Although there have not been many arbitration decisions dealing with testing programs specifically, the trend amongst arbitrators is to make an attempt to find a reasonable balance between public safety issues and employee rights when discussing medical examinations and drug testing. The issues are also often discussed within the context of human rights guidelines and principles.
  
• There has been considerable direction in the area of justifying the introduction of a policy. In all cases but random programs, arbitrators ave found that employers do not have to establish proof of an alcohol or drug problem in order to introduce a workplace policy, even one that includes testing. Although random testing was not before them, some arbitrators have concluded that a higher standard would need to be met to introduce random testing, however, this was not an issue in the human rights cases (Entrop, Milazzo).
• Each arbitration decision is specific to the company policy being reviewed in each case, however, the general trend appears to be to accept alcohol and drug testing in a reasonable cause situation, as part of a complete investigation into a serious accident or incident, and on a case by case basis on return to duty after treatment for a problem, or as a condition of continued employment after a violation. Reasonable cause is not required in a post incident situation. Some arbitrators have limited reasonable cause and post incident testing to risk-sensitive positions; it is up to the employer to define these.

  Some arbitrators have upheld testing as a condition of assignment to a higher risk position, while one did not, however, this was supported in Entrop. Discipline can be applied if someone tests positive or refuses to be tested, second hand smoke has not been accepted as an excuse for a positive marijuana test, and last chance agreements are acceptable, however, the union needs to be consulted when the agreement is being set up. The use of quick or “point of collection” tests has been upheld.

  More recent decisions have accepted random alcohol testing consistent with the Entrop decision, but have not upheld random drug testing (or the random drug testing was on hold and not before the arbitrator for ruling). There has been no ruling on pre-employment testing as the arbitrators and unions have no jurisdiction. A hearing in Ontario will be dealing with Imperial Oil’s random drug testing program using oral fluid
  (saliva analysis) which they believe is a better indicator of impairment; a ruling is expected before the end of 2005.

• There are a number of hearings upcoming in safety-sensitive industries which may further clarify the situation.

"The information in this article is not intended to be legal advice,
but simply presents an overview of current issues in Canada.
Other Articles by Barbara Butler:

WHY SHOULD WE HAVE A POLICY?
DEVELOPING AND IMPLEMENTING AN EFFECTIVE POLICY

Alcohol and Drug Testing

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Updated 2006