WORKPLACE ALCOHOL
AND DRUG TESTING:
It is not allowed unless there is a real workplace substance abuse problem that can't be
fixed any other way
In
the International Union of Operating Engineers, Local 793 and Sarnia Cranes (Board
File No: 3123-97-G) decision, dated May 4, 1999, the Ontario Labour Relations Board
considered if the drug and alcohol testing policy enacted by Sarnia Cranes violated the
relevant collective agreement.
The policy itself called for four types of drug testing:
"pre-access" to high-risk workplaces, "reasonable cause" for concern,
"post-incident" of misconduct and "monitoring" problem employees.
Although random drug testing was not part of the policy, the Board was asked to make a
determination with respect to random testing as well. The Board took note of the fact that
the "reasonable cause testing" that could take place even where there was no
reasonable suspicion of the use of drugs or alcohol. The policy also stated that an
employee’s refusal to take a test would be construed as a positive drug test.
Relying upon the seminal decision in KVP (1965),
16 L.A.C. 73 and upon the Court of Appeal’s decision in Re: Municipality of
Metropolitan Toronto (1990), 69 D.L.R. (4th) 268 (Ont. C.A.), the Board
held that there was an implicit duty on employers to have reasonable workplace policies.
The Board found the policy was unreasonable and so violated the collective agreement.
The Board concluded that the drug and alcohol testing
policy discriminated against employees and was contrary to human rights legislation,
citing the Divisional Court’s decision last year on Esso’s workplace drug
testing policy: (1998), 98 C.L.L.C. 145,072.
The Board, repeating the analysis done by the Board of
Inquiry in the earlier Esso decision, stated that a drug test could not establish
impairment at the time of the test itself. The Board reasoned that if a drug test could
not establish the degree of impairment at the moment of the test, then it was extremely
prejudicial to rely on such a test to discipline or discharge an employee. While the
employer had a duty to guarantee a safe workplace and to ensure its employees were not
impaired, a drug test was not the means of doing this. The Board also reviewed the
arbitral jurisprudence on drug testing in the workplace. It determined that if there were
a workplace drug problem and if there were no less invasive manner in which to determine
if an employee had a drug or alcohol related problem, then and only then was workplace
drug testing acceptable.
The Board in its conclusions, while noting that the
construction industry was one in which "tea was not the beverage of choice",
stated emphatically that it believed a stronger employee assistance program coupled with
health promotion and employee training programs could lead to the determination of an
employee’s impairment because of drug use.
An employer will not be able to conduct any type of
drug and alcohol tests unless the employer can prove testing is necessary because of a
demonstrated workplace problem related to drugs or alcohol. The employer will also have to
prove that it is impossible to monitor for drug and alcohol abuse without resorting to
invasive drug tests. .
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