eCaseNote 2007 No. 04

Random Drug Testing – Still Ahead of its Time

Entrop v. Imperial Oil Ltd., [2000] O.J. No. 2689.

An arbitration decision released in December 2006 has reaffirmed the general prohibition against random drug testing for employees. We believe that this issue may be of interest to our employer clients and warrants a review of the current law on alcohol and drug testing in the workplace.

In 2000, the Ontario Court of Appeal rendered its decision in Entrop v. Imperial Oil Ltd. The case dealt with an appeal by Imperial Oil of a decision by a board of enquiry. Imperial Oil had instituted an employee alcohol and drug testing policy at its two Ontario refineries that included automatic termination of employment as a sanction for a positive test result. Entrop was an Imperial employee who was a recovered alcoholic and was required by the policy to disclose his previous alcohol abuse as his job was classified as safety-sensitive. Upon this disclosure, Entrop was reassigned to another position and although he was eventually reinstated, he filed a complaint with the Ontario Human Rights Commission alleging discrimination on the basis of a handicap.

In analyzing this case, the Court expanded Entrop’s complaint to a review of Imperial Oil’s alcohol and drug testing policy. The court found that some instances of alcohol testing, and drug testing post-incident or for reasonable cause, were allowable. However, random and unannounced drug testing contravened the Human Rights Code. The Court reasoned that alcohol testing via breathalyzer is capable of revealing an employee’s current state of impairment and the results are available immediately. Drug testing on the other hand was performed by urinalysis, which could not determine current impairment as it only indicated past drug usage. The results were also not available for some time after the test. However, despite the technological shortcomings, drug testing by an employer could be defensible if reasonable grounds for suspicion of impairment exist or after an incident had occurred at the workplace.

Two years after the court’s decision in Entrop, Imperial Oil reinstated its random drug testing policy on the grounds that it could now determine an employee’s current state of impairment through buccal swab testing (saliva), although the results would still not be available for several days after the test. The union grieved this new policy and the issue came before arbitrator Picher who released his decision on December 11, 2006. Arbitrator Picher distinguished this grievance from the issue at court in 2000 because the issue in the court was whether random drug testing was defensible as a bona fide occupational requirement under the Human Rights Code, whereas the issue before him was whether the parties’ collective agreement allowed random drug testing when there was no reasonable belief an employee might be impaired.

Arbitrator Picher relied on a number of points to support his decision to allow the grievance. He noted that swab testing was not the same as breathalyzer testing as it did not produce immediate results that would allow the employer to remove impaired individuals from safety-sensitive positions. The delay in test results did not ensure immediate safety in the workplace and was thus invasive without purpose. Arbitrator Picher also pointed out that there are only narrow exceptions at common law where an employer may subject an employee to medical or physical tests without consent.

This decision emphasizes the principle that random drug testing by employers is an invasion of personal dignity and is impermissible except in limited defined circumstances. Employers may still perform these random tests. However, those wishing to do so must be prepared to defend their actions by showing that a real safety risk exists in the workplace to warrant the tests. In his decision, Arbitrator Picher did leave open the possibility that, with on-going technological advances in drug testing that provide immediate results, random drug tests of employees might become allowable at some future date.

Should you wish to receive a full copy of this decision or discuss its implications, feel free to contact our office.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.