balancing of interests

Marijuana and the workplace: A review of the law on drug testing

One of the ways in which employers have sought to limit the impact of drugs in the workplace is through drug testing. In 2013, in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 (“Irving Pulp & Paper”), the Supreme Court of Canada clarified the law in regards to drug and alcohol testing generally, and random drug and alcohol testing specifically.

Prior to the Irving Pulp & Paper decision, courts and arbitrators in Canada generally used a “balancing of interests” approach in the assessment of the “reasonableness” of drug or alcohol testing. This approach sought to balance the rights of management to set rules for the safe and efficient operation of the business against the employee’s human rights and privacy. The requirement of reasonableness stems from the fact that drug and alcohol testing is invasive and presumptively discriminatory.

In Irving Pulp & Paper, the Supreme Court confirmed the balancing of interests approach, finding that an employer may only impose a rule with disciplinary consequences if the need for the rule outweighs the harm it has on an employee’s privacy rights. This proportionality test begins with the threshold question: is the workplace dangerous/safety sensitive? If that question is answered in the affirmative, the balancing of interests begins.

Accepting the arbitral consensus on the subject, the Supreme Court determined that where a workplace is deemed to be dangerous, employers can test an employee who occupies a safety sensitive position in the following three situations:

  1. where there is “reasonable cause” to believe that the employee is impaired while on duty;
  2. where the employee has been directly involved in a workplace accident or near-miss; or
  3. where the employee is returning to work after treatment for substance abuse.

It is important to note that labelling a workplace dangerous does not justify the testing of all employees within that workplace. Rather, it is only employees occupying safety sensitive positions within that workplace that may be subject to testing in the above situations.

Random testing for drugs and alcohol is not permitted in Canada, except in the following circumstances:

  1. where the employer and the union have negotiated random testing into their collective agreement; or
  2. where the employer can establish both that the positions subject to random testing are safety sensitive, and that there is a general problem with drug or alcohol use in the workplace.

The threshold for meeting the latter exception has been set quite high.

Where drug testing is justified, employers must still recognize that addiction is a disability under human rights law and that employees suffering from an addiction must be accommodated to the point of undue hardship. Accommodation in those cases includes a requirement for the employee to cooperate with treatment. Further, while drug testing has become common place at safety sensitive worksites, a positive drug test may not be necessary for disciplining an employee, or determinative of whether discipline is justified. This issue will be dealt with in our next article on the issue of whether impairment must be established to justify discipline.

Questions about the content of this article may be directed to Brad Cocke.

Refer to our previous article on Marijuana and the workplace: Legalization is coming.