Imperial Oil loses fight to use new technology that could tell whether worker was impaired by marijuana
In 2001 the Ontario Court of Appeal released its decision in Entrop v. Imperial Oil Ltd., which has been considered as the leading Canadian jurisprudence on drug and alcohol testing of employees. The case, generally known as the Entrop decision, has been referenced and followed across the country.
Entrop set out the law with respect to when alcohol and drug testing would be permissible. The court considered random testing, post-incident testing and for-cause testing. In assessing the appropriateness of such testing, the Court of Appeal distinguished between alcohol testing and drug testing. Alcohol testing, generally by breathalyser, was recognized as being capable of determining whether an individual was intoxicated.
Conversely, drug testing technology at the time was only capable of assessing whether an individual had drug residue in their system, which would show past usage but not impairment. The court placed significance on this disparity, and allowed alcohol testing in broader circumstances than drug testing. The decision suggested that until the technology progressed to the point where actual impairment could be measured, random drug testing could not be imposed by employers.
As a result, Imperial Oil amended its policy and stopped performing random drug tests. It then set out to find a form of drug testing that could measure impairment, based on its understanding that such a test would be acceptable for random usage in safety-sensitive environments.
Imperial Oil identified technology that would measure actual impairment, due to drug use, at the time of testing. It then sought to reintroduce random drug testing at its Nanticoke, Ont., refinery, which was recognized as a “highly safety-sensitive endeavour.” The only weakness in the new form of testing was that that it did not deliver immediate results, as a breathalyser test would. Rather, one must wait several days for the results.
The company set out its approach in a letter to employees. The union grieved the introduction of such testing, alleging it to be a violation of the collective agreement.
The company cited generic evidence of growing marijuana usage and related impairment at work. In response, the union pointed out that there was no record of any bargaining unit employee ever having tested positive for drugs. The board noted there was also no evidence of any significant degree of cannabis use among the workforce at the Nanticoke refinery.
The company’s position was a relatively simple one: the Court of Appeal had ruled against random drug testing because it could not show actual impairment. Now that it had technology that could do so, the company argued such testing should be allowed. The board summarized Imperial Oil’s position as follows:
“The company takes the view that the decision of the Court of Appeal in Entrop effectively trumps the well-established arbitral jurisprudence which has consistently struck down random alcohol and drug testing in a safety-sensitive workplace. The company reasons that the oral-fluid drug test which it now administers is fully analogous to the breathalyser test, to the extent that it can detect impairment. On that basis, it reasons that it conforms to the Court of Appeal’s decision in Entrop and is therefore permissible.”
The ‘Canadian model’
The arbitration board then set out what it understood to be the state of the law, something it called the “Canadian model” for drug and alcohol testing in a safety-sensitive workplace:
•No employee can be subjected to random, unannounced alcohol or drug testing, except as part of an agreed rehabilitative program.
•An employer may require alcohol or drug testing if it has reasonable cause.
•A collective agreement may allow for alcohol or drug testing following a significant incident, accident or near miss, to identify the root cause of what occurred.
•Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have an alcohol or drug use problem. An employee’s program of rehabilitation may involve random, unannounced testing for a period of time, most commonly two years. In a unionized workplace the union must be involved in the agreement.
•In the three circumstances described above, refusing to undergo a drug or alcohol test may properly be viewed as a serious violation of the employer’s drug and alcohol policy and may itself be grounds for serious discipline. However, like the registering of a positive test, such failure or refusal does not necessarily justify automatic termination.
The board went on to consider whether the proposed drug testing was a violation of the collective agreement. The board noted that in Entrop, “the focus of the court’s decision was to consider the narrow application of the (Ontario Human Rights Code) to the company’s drug and alcohol policy,” whereas the board considered the issue before it to be whether the new policy contravened the collective agreement.
By making this distinction, the board essentially nullified the argument that the company had complied with the “requirements” of the Entrop decision and that the proposed random drug testing was therefore not a breach of the collective agreement.
“In Canada, arbitrators have overwhelmingly rejected mandatory, random and unannounced drug testing for all employees in a safety-sensitive workplace as being an implied right of management under the terms of a collective agreement,” the board said.
It went on to state that, “subjecting all employees to random drug testing by means of a buccal swab test simply cannot be reconciled with the well-established, predominant Canadian arbitral jurisprudence, which holds that, in a safety-sensitive working environment, drug and alcohol testing can be required of an individual employee by his or her employer only where there is reasonable and probable cause to do so, or where there has been an accident or incident (that) would justify such a measure.”
Finally, the board held that the new drug testing was not analogous to a breathalyser, as it does not provide immediate results. As a result, the board held it was a violation of the collective agreement.
What if the technology provided immediate results?
Based on the above, it might be arguable that the missing piece of the puzzle was a drug test that could measure impairment and provide immediate results, like a breathalyser does with alcohol. However, the board cast doubt on this when it went on to say: “Moreover, while the case is not before us, we have grave doubts as to whether the company could randomly administer drug tests, even if it could be shown that the test would reveal impairment on the spot.”
The board did acknowledge a relatively minor potential exception to their rejection of random drug tests: “If, for example, an employer could marshal evidence (that) compellingly demonstrates an out-of-control drug culture taking hold in a safety-sensitive workplace, such a measure might well be shown to be necessary for a time to ensure workplace safety. That might well constitute a form of ‘for-cause’ justification.”
The general perception of the law, based on Entrop, was that if drug testing could measure actual impairment, as opposed to prior usage, it had a much better chance of being allowed. This most recent decision casts serious doubt on that view, and in fact explicitly suggests that random drug testing might never be accepted by arbitrators unless it was specifically provided for in a collective agreement.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].
Entrop set out the law with respect to when alcohol and drug testing would be permissible. The court considered random testing, post-incident testing and for-cause testing. In assessing the appropriateness of such testing, the Court of Appeal distinguished between alcohol testing and drug testing. Alcohol testing, generally by breathalyser, was recognized as being capable of determining whether an individual was intoxicated.
Conversely, drug testing technology at the time was only capable of assessing whether an individual had drug residue in their system, which would show past usage but not impairment. The court placed significance on this disparity, and allowed alcohol testing in broader circumstances than drug testing. The decision suggested that until the technology progressed to the point where actual impairment could be measured, random drug testing could not be imposed by employers.
As a result, Imperial Oil amended its policy and stopped performing random drug tests. It then set out to find a form of drug testing that could measure impairment, based on its understanding that such a test would be acceptable for random usage in safety-sensitive environments.
Imperial Oil identified technology that would measure actual impairment, due to drug use, at the time of testing. It then sought to reintroduce random drug testing at its Nanticoke, Ont., refinery, which was recognized as a “highly safety-sensitive endeavour.” The only weakness in the new form of testing was that that it did not deliver immediate results, as a breathalyser test would. Rather, one must wait several days for the results.
The company set out its approach in a letter to employees. The union grieved the introduction of such testing, alleging it to be a violation of the collective agreement.
The company cited generic evidence of growing marijuana usage and related impairment at work. In response, the union pointed out that there was no record of any bargaining unit employee ever having tested positive for drugs. The board noted there was also no evidence of any significant degree of cannabis use among the workforce at the Nanticoke refinery.
The company’s position was a relatively simple one: the Court of Appeal had ruled against random drug testing because it could not show actual impairment. Now that it had technology that could do so, the company argued such testing should be allowed. The board summarized Imperial Oil’s position as follows:
“The company takes the view that the decision of the Court of Appeal in Entrop effectively trumps the well-established arbitral jurisprudence which has consistently struck down random alcohol and drug testing in a safety-sensitive workplace. The company reasons that the oral-fluid drug test which it now administers is fully analogous to the breathalyser test, to the extent that it can detect impairment. On that basis, it reasons that it conforms to the Court of Appeal’s decision in Entrop and is therefore permissible.”
The ‘Canadian model’
The arbitration board then set out what it understood to be the state of the law, something it called the “Canadian model” for drug and alcohol testing in a safety-sensitive workplace:
•No employee can be subjected to random, unannounced alcohol or drug testing, except as part of an agreed rehabilitative program.
•An employer may require alcohol or drug testing if it has reasonable cause.
•A collective agreement may allow for alcohol or drug testing following a significant incident, accident or near miss, to identify the root cause of what occurred.
•Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have an alcohol or drug use problem. An employee’s program of rehabilitation may involve random, unannounced testing for a period of time, most commonly two years. In a unionized workplace the union must be involved in the agreement.
•In the three circumstances described above, refusing to undergo a drug or alcohol test may properly be viewed as a serious violation of the employer’s drug and alcohol policy and may itself be grounds for serious discipline. However, like the registering of a positive test, such failure or refusal does not necessarily justify automatic termination.
The board went on to consider whether the proposed drug testing was a violation of the collective agreement. The board noted that in Entrop, “the focus of the court’s decision was to consider the narrow application of the (Ontario Human Rights Code) to the company’s drug and alcohol policy,” whereas the board considered the issue before it to be whether the new policy contravened the collective agreement.
By making this distinction, the board essentially nullified the argument that the company had complied with the “requirements” of the Entrop decision and that the proposed random drug testing was therefore not a breach of the collective agreement.
“In Canada, arbitrators have overwhelmingly rejected mandatory, random and unannounced drug testing for all employees in a safety-sensitive workplace as being an implied right of management under the terms of a collective agreement,” the board said.
It went on to state that, “subjecting all employees to random drug testing by means of a buccal swab test simply cannot be reconciled with the well-established, predominant Canadian arbitral jurisprudence, which holds that, in a safety-sensitive working environment, drug and alcohol testing can be required of an individual employee by his or her employer only where there is reasonable and probable cause to do so, or where there has been an accident or incident (that) would justify such a measure.”
Finally, the board held that the new drug testing was not analogous to a breathalyser, as it does not provide immediate results. As a result, the board held it was a violation of the collective agreement.
What if the technology provided immediate results?
Based on the above, it might be arguable that the missing piece of the puzzle was a drug test that could measure impairment and provide immediate results, like a breathalyser does with alcohol. However, the board cast doubt on this when it went on to say: “Moreover, while the case is not before us, we have grave doubts as to whether the company could randomly administer drug tests, even if it could be shown that the test would reveal impairment on the spot.”
The board did acknowledge a relatively minor potential exception to their rejection of random drug tests: “If, for example, an employer could marshal evidence (that) compellingly demonstrates an out-of-control drug culture taking hold in a safety-sensitive workplace, such a measure might well be shown to be necessary for a time to ensure workplace safety. That might well constitute a form of ‘for-cause’ justification.”
The general perception of the law, based on Entrop, was that if drug testing could measure actual impairment, as opposed to prior usage, it had a much better chance of being allowed. This most recent decision casts serious doubt on that view, and in fact explicitly suggests that random drug testing might never be accepted by arbitrators unless it was specifically provided for in a collective agreement.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].
