TESTING EMPLOYEES FOR DRUG USE RAISES SERIOUS COMPLICATIONS FOR EMPLOYERS

When it comes to drug and alcohol testing, employers are stuck between a
rock and a hard place.

On the one hand, employers are responsible for workplace safety and
encouraged by WCB to make safety "job No. 1." Failure to ensure workers are
free from the influence of alcohol or drugs on the job is one important way
to ensure a safe workplace and is particularly important for
"safety-sensitive" workers, such as those using heavy equipment or driving
trucks or trains.

The Exxon Valdez oil spill in Alaska, which was attributable to alcohol
consumption by the tanker's captain, demonstrated just how disastrous use
of alcohol and drugs can be in some jobs. Since the Exxon Valdez incident,
U.S. companies and regulators have been insisting that Canadian trucking
and transportation companies working in the U.S. conduct drug and alcohol
testing.

On the other hand, Canadian human rights tribunals and courts are concerned
about how drug and alcohol testing can invade an employee's privacy, lead
to unfair hiring and firing decisions and fail to provide addicted
employees with an opportunity to rehabilitate themselves.

In the two leading decisions on human rights challenges to drug and alcohol
testing at major employers Esso and TD Bank, appeal courts struck down
policies requiring widespread testing of employees.

Both decisions emphasized that if an employee or new hire is addicted to
drugs or alcohol, the employer cannot automatically refuse or terminate
employment, but instead must explore ways to "accommodate" the employee,
often by assisting in getting the employee to take rehab treatment.

The decisions also found that existing drug testing technology only proves
past use of illegal drugs and can diagnose neither current impairment nor
the likelihood that an employee may work while impaired.

Broadly speaking, alcohol and drug testing is imposed in three contexts:

* Universal pre-employment testing: this practise is common in the U.S. and
entails requiring all new hires to "pass" alcohol or drug testing before
starting a job by getting clean results.

* Safety-sensitive testing: under this approach, employers only test
employees whose jobs mean being impaired can have disastrous consequences
e.g. heavy machinery operators, truck drivers, air traffic controllers and
staff responsible for monitoring power plants.

* Discipline investigation testing: under this approach, the employer
requests that an employee undergo testing only after the employer suspects
use of drugs or alcohol on the job.

The Esso and TD Bank decisions did not focus on investigation testing,
which remains legal, as long as the employee consents to the testing.

Where an employer has strong evidence of impairment and the employee
refuses to undergo testing, the courts will uphold dismissal of the
employee, although employers are well-advised to give the employee a proper
opportunity to consent to testing.

This applies regardless of the job held by the employee. Only where the
employee advises he is addicted or where this is apparent does the employer
have to consider accommodation. Human rights protection does not extend to
occasional drug users.

At the other end of the spectrum, these recent court decisions seem to
establish that universal pre-employment drug and alcohol testing breaches
human rights legislation, particularly when coupled with a "zero tolerance"
policy on test results.

There may also be an argument that universal drug testing breaches privacy
legislation in that it requires disclosure of fairly sensitive personal
information, which is not predictive of the risk of on-the-job impairment.
The intermediate approach of testing only for safety-sensitive positions is
where the law is unsettled. According to the Canadian Human Rights
Commission, which investigates discrimination in a small number of certain
federally regulated workplaces, this approach breaches its legislation.
Although there is no authoritative case in B.C., it is likely that such
testing remains permissible provided the employer considers all the
circumstances when results come back positive.

A U.S.-style "zero tolerance" rule will not be acceptable, except perhaps
where the employer can show that an outside regulator, such as the U.S.
transportation authorities, requires such a policy as a condition of
operating there.

As the Ontario Court of Appeal noted in the Esso decision, the law on
permissible testing will evolve with improvements in testing technologies.
In particular, if cheap accurate testing for drug impairment or addiction
at the time of testing becomes available, the courts may find it is
permissible to require such tests more broadly.