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Intrusive Testing

Now that Canada’s highest court has established a major legal barrier for employers wanting to test workers in safety sensitive positions for drug and alcohol impairment, lawyers suggest that fleet managers would need significant evidence of a workplace problem before bringing in random testing


May 1, 2017   by Greg Meckbach, Associate Editor


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Fleet managers looking for ways to reduce the risk of impaired driving should only employ random drug and alcohol testing of operators “as a last resort,” one employment lawyer advises, while another warns that the Supreme Court of Canada has ruled it is an “affront to privacy and dignity rights” if workers are ordered to blow into a straw.

“It would be an aggressive move to try and implement random testing when you haven’t actually had any workplace problems” with substance abuse, suggests employment lawyer Shaun Parker, an associate with Osler, Hoskin & Harcourt LLP. Parker was commenting on Canadian case law involving employers implementing random drug and alcohol testing.

In a divided decision released in 2013, the Supreme Court of Canada ruled against Irving Pulp & Paper Ltd. In 2006, Irving had brought in random alcohol testing for employees at a Saint John, New Brunswick paper mill. An arbitration board allowed a grievance from Local 30 of the Communications, Energy and Paperworkers Union (CEP). (CEP has since merged with Canadian Auto Workers to form Unifor).

Irving Pulp and Paper was initially successful on judicial review, with New Brunswick’s Court of Queen’s Bench setting aside the arbitrator’s decision. The court ruling was initially upheld on appeal, but later overturned by the Supreme Court of Canada.

The majority of Supreme Court of Canada judges hearing CEP’s appeal agreed with the arbitration board, which “concluded that the employer had not demonstrated the requisite problems with dangerousness or increased safety concerns such as workplace alcohol use that would justify universal random testing.”

But a more recent ruling is “in contrast” to Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., suggests Norm Keith, a senior partner for Fasken Martineau DuMoulin LLP, whose areas of specialty include employment law. In his ruling released April 3, 2017, Justice Frank Marrocco of Ontario’s Superior Court of Justice ruled in favour of the Toronto Transit Commission (TTC) and against Local 113 of the Amalgamated Transit Union (ATU), which represents drivers and some other TTC employees. ATU Local 113 had asked the court for “an interlocutory injunction restraining implementation” of drug and alcohol testing for TTC employees represented by ATU, Justice Marrocco writes in his ruling.

PUBLIC SAFETY

“There is one distinction between Irving and the TTC injunction case and that is the issue in the TTC case is not only worker safety, but also safety of the general public,” notes Keith, who contends that random drug and alcohol testing has a deterrent effect similar to the RIDE programs.

“Everyone knows that if you know the cops are out because it’s party night and you might have to stop, fewer people are going to be stupid enough to go out and get drunk and then go driving,” says Keith.

“The point about proactive and random testing is not about seeing how many people you can catch, but is really to deter anyone from doing something illegal or reckless and harmful to others,”he comments.

The operations of the Irving mill in Saint John “involve hazardous chemicals and gases, heavy machinery and equipment, high-pressure boilers and steam lines, and high-voltage electric lines,” write Justices Marshall Rothstein and Michael Moldaver of the Supreme Court of Canada. “It is uncontroversial that the mill, in normal operation, is a dangerous environment that presents risks not only to the employees of the mill, but also to the public, to property, and to the environment.”

Justices Rothstein and Moldaver make their comments – on behalf of themselves as well as Chief Justice of Canada Beverly McLachlin – in dissenting arguments in the Irving decision. Those three judges would have upheld the ruling by New Brunswick’s Court of Appeal in favour of Irving on the grounds that the provincial arbitration board’s decision was unreasonable.

INVASION OF PRIVACY

Nevertheless, the other six judges hearing CEP’s appeal agreed with the arbitration board’s finding that breathalyzer testing “effects a significant inroad” on privacy.

“We are talking about blowing into a straw to test for alcohol,” notes Keith, who represented Alliance of Manufacturers and Exporters of Canada as an intervener in the Irving case. Irving, Keith recounts, “just wanted 10% of workers in safety positions to blow into a straw once a year. That was seen as an affront to privacy and dignity rights of the unionized workers which is, with great respect, absurd.”

But even when a workplace is dangerous, this “does not automatically give the employer the right to impose random testing unilaterally,” Justice Rosalie Silberman Abella writes for the majority in Irving. “The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse.”

The majority in Irving cited case history, including two Supreme Court of Canada rulings. In R. v. Shoker, released in 2006, the court amended the portion of a probation order mandating drug testing for an accused.

“The seizure of bodily samples is highly intrusive” and “subject to stringent standards and safeguards to meet constitutional requirements,” Justice Louis Charron writes in Shoker.

The majority in Irving also cited a ruling in favour of Brandon Dyment, who was injured in a 1982 vehicle accident and charged with impaired driving. A blood sample taken by an emergency room doctor – for medical use – was handed over to police, who tested the blood for alcohol content.

“The use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity,” Justice Gérard Vincent La Forest wrote in 1988 in R. v. Dyment.

Twenty-five years later, the majority in Irving ruled that the employer “had not demonstrated the requisite problems with dangerousness or increased safety concerns such as workplace alcohol use that would justify universal random testing.”

Last year, the TTC announced it would hire a third party to “administer and implement random alcohol and drug testing” for its employees.

The TTC’s “fitness for duty policy,” did not provide for random drug and alcohol testing when it originally came into effect in 2010. Until 2016, that policy provided for drug and alcohol testing in cases where there is “reasonable cause,” as part of an investigation into an incident, where an employee is returning to work after either being treated for substance abuse or after violating the fitness for duty policy, or “as a final condition of appointment to a safety-sensitive position.”

ONGOING ARBITRATION

In 2011, ATU Local 113 filed a grievance, which went to arbitration and, as of late April, is still before arbitration. Last year, the union applied for its injunction.

“There is a demonstrated workplace drug and alcohol problem at the TTC which is currently hard to detect and verify,” writes Justice Marrocco in explaining why the union was denied its injunction. “If random testing proceeds, it will increase the likelihood that an employee in a safety-critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known, or deterred by the prospect of being randomly tested,” he suggests in the decision.

Under the TTC policy, a test showing a blood alcohol level of .04% or higher is classified as positive, as does a “positive oral fluid drug test,” Justice Marrocco explains.

The cut-off levels, for an oral fluid drug test under the TTC policy, are as follows: 10 ng/mL (nanograms per millilitre) for marijuana; 50 ng/mL for cocaine, opiates and amphetamines; 4 ng/mL for acetylmorphine; and 10 ng/mL for phencyclidine.

“Unlike urinalysis, oral fluid testing does not pose the privacy issue of having to directly observe specimen collection to prevent adulteration of the sample,” Justice Marrocco notes, adding TTC’s testing method is “minimally invasive.”

Such a ruling against a union “is fairly common of these kinds of cases in that typically in a unionized workplace, the union files a grievance and the parties proceed to an arbitration on the policy itself (that is) whether the employer is entitled to implement random drug and alcohol testing,” reports employment lawyer Brian Thiessen, a partner with Osler, Hoskin & Harcourt.

Thiessen adds an injunction such as the one ATU Local 113 asked for “is a really extraordinary remedy of the court.”

A union in such a case is “basically asking the court,” before establishing its main action,” to order the employer “not to engage in any drug and alcohol testing while the arbitration is proceeding,” Thiessen explains. To be successful in such a case, “the union would have to show there is a serious issue to be tried, that… the union seeking the interim relief will incur irreparable harm if the relief is not granted.”

BIG PICTURE

The TTC’s workplace, Justice Marrocco writes, “is literally the City of Toronto and, as a result, all the people who move about in the City… have an interest in the TTC safely taking its passengers from one place to another.”

That distinguishes it from the Irving ruling, suggests Keith, co-author of Alcohol and Drugs in the Canadian Workplace: An Employer’s Guide to the Law, Prevention and Management of Substance Abuse.

“The issue in the TTC case is not only worker safety, but also safety of the general public,” says Keith, suggesting that if Justice Marrocco’s ruling from April, 2017 is to be “reconciled” with Irving, “the troubling part is that it seems as if public safety is given a higher value, legally, than worker safety.”

But this may not be the end of the matter, Thiessen suggests. “If you are looking at the big picture the TTC won the battle,” he says. “They may not win the ultimate war on the arbitration. They still are going to have to get over Irving from the Supreme Court of Canada.”

Justice Marrocco found that if ATU is, ultimately, successful in grieving the transit commission’s drug and alcohol testing policy, this would constitute a privacy violation for which union members can be compensated.

Still, employers wanting to implement drug and/or alcohol testing of drivers should “start with baby steps,” advises Parker. “You can start off by having, say, reasonable suspicion or post-incident testing of employees. You want to show that you have exhausted all reasonable alternative before you go down that route.”