Most courts and arbitrators would agree that employers have the right to expect that employees will come to work sober, but that does not mean that employers have the right to test employees for drug and alcohol use.
While some testing is allowed for “reasonable cause”, which may include issues with respect to behaviour, appearance, or other “common sense” concerns, random drug testing is still not allowed. However, Alberta oil sands company Suncor implemented a drug and alcohol policy that allows for random testing which is currently being challenged by the union.
Once the grievance and the appeal decisions are released, we may have some clarity with respect to if and when random drug testing is permitted, and under what circumstances, Filion Wakely Thorup Angeletti associate Lauren Chang Mclean said. Of particular importance will be the arbitrator and/or the Court of Appeal’s findings with respect to the technological limitations on testing and the evidence connecting past or present impairment to safety.
“Drug testing doesn’t show how impaired you were, it only shows whether or not you had it in your system, conceivably from a past use,” Chang Mclean said.
Whereas random alcohol testing, which is generally allowed in safety sensitive positions, drug testing cannot provide the same timely information. Another Albertan initiative, the Drug and Alcohol Risk Reduction Pilot Project (DARRPP) could give insight into whether technology has advanced to allow this kind of information from drug testing as well.
Pre-employment drug testing is usually accepted by the courts, as long as the drug testing is done after a conditional offer has been made; the drug testing has some nexus to the position offered (i.e., the position is safety sensitive); and any response to a positive drug test will factor in an employer’s obligations under human rights legislation.
“Because addiction is protected as a disability under most human rights legislation, as an employer you’re going to have obligations even though you haven’t engaged that person yet,” Chang Mclean added. “What most often happens is helping employees by referring them to employee assistance plans, counselling or doctors.”
Random drug, and to an extent, alcohol testing is generally prohibited, this area of the law is not yet set in stone. Any drug and alcohol policy that involves testing of any kind should be very carefully drafted, and employers should be mindful of their obligations under human rights legislation, privacy legislation, and any relevant collective agreements.