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Two decisions handed down in 2002 have clarified when employers can do random or general drug testing in the workplace. They have also explained what those employers can do to workers if they have a positive result.

The first was a decision of arbitrator Picher. He was asked to review the new Canadian National Railway policy on alcohol and drug use. The national, comprehensive policy dealt with testing for illegal and legal drug use in regular and safety-sensitive positions. It also set out consequences for on-duty and off-duty use and abuse of alcohol and drugs.

The Union (CAW) took the position that the employer could only test if there was collective agreement or legal permission to do so. The arbitrator rejected this, in favour of an approach that balanced the employees' interest with those of the employer and the travelling public. The arbitrator accepted that any testing is an intrusion on the employees' privacy and could only be justified if there was demonstrable justification on reasonable and probable grounds.

Mr. Picher ruled that an automatic penalty clause in a drug testing policy was not allowed, as it would violate the collective agreement. He threw out the company's plans for drug testing for people who did not hold risk sensitive positions. He found that it was contrary to the collective agreement and the Canadian Human Rights Act. He ruled on a number of other aspects of the policy, such as searches and levels of impairment.

Three days later, the Ontario Court of Appeal released the decision of Entrop v. Imperial Oil. This decision confirmed many of the findings in the C.N. decision. The Court found that policies on drug testing had to be reasonably necessary for a legitimate business purpose, and that the drug problem could not be accommodated in any other way without undue hardship. The Court struck down random tests because they did not show impairment or likely impairment on the job. It struck down automatic penalties and refused to allow Imperial Oil to impose other parts of its policy, holding that they were a violation of the Ontario Human Rights Code.

Unions now have strong ammunition to challenge unreasonable drug and alcohol testing, use and abuse policies, where the employer has gone beyond what is reasonably necessary to protect legitimate work interests.

Author: Sean McGee © Nelligan O'Brien Payne LLP 2002

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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