Andrew Wood

1
Drug Testing In The Workplace

• Andrew Wood

2
Drug Testing In The WorkplaceOverview

• Whats the big deal?
• The complexities and controversy around drug
  testing
• Requirements for implementing a valid drug
  testing policy
• Formal versus informal policy
• Justifying the need for a policy
• Appropriate circumstances to test
• Other requirements for a valid policy

3
Drug Testing In The WorkplaceWhats The Big Deal?

• Contrast approaches to drug testing in United
  States and Canada
• U.S. approach As a matter of public policy drug
  testing is permissible and desirable to eliminate
  any risk of employee impairment
• Canada approach
• Not so simple
• Balances rights, interests and obligations of
  employers and employees

4
Drug Testing In The WorkplaceWhats The Big Deal?

• Employee interests
• Privacy rights/Integrity of the person
• Human rights
• Employer interests
• Safety/elimination of risk

5
Drug Testing In The WorkplaceWhats The Big Deal?

• Interests are reflected in statutory obligations
• Privacy legislation
• Workers Compensation Act and OHS Reg. 4.20
• Human Rights Code

6
Drug Testing In The WorkplaceWhats The Big Deal?

• Human Rights Code
• Drug dependence or addiction is a disability
• Distinguish from drug use or abuse
• Employers cannot discriminate in employment on
  the basis of disability
• Drug testing policies cannot discriminate against
  drug dependent/addicted employees

7
Drug Testing In The WorkplaceWhats The Big Deal?

• Human Rights Code
• Drug policy (including drug testing) must be a
  bona fide occupational requirement
• Must satisfy Meiorin test or will be found to be
  discriminatory
• Work standards rationally connected to the job?
• Work standards adopted in good faith?
• Work standards are reasonably necessary to
  achieve work objectives? (Duty to Accommodate)

8
Drug Testing In The WorkplaceWhats The Big Deal?

• Bottom linedrug testing is a complex issue with
  many factors and competing interests to be
  considered
• Many decisions of arbitrators, human rights
  adjudicators, and courts provide guidance on
  required standards
• Emphasizes importance of seeking advice

9
Requirements For Implementing A Drug Testing
Policy

• Formal written drug testing policy not
  necessarily required but recommended
• Benefits of formal drug testing policy
• Provides notice to employees
• Provides guidance to supervisors
• Documents evidence to reduce risk of human rights
  complaints
• How testing fits in with overall health and
  safety objectives
• How duty to accommodate is addressed

10
Requirements For Implementing A Drug Testing
Policy

• Basic KVP requirements for enforceable policy
• Policy must not be inconsistent with collective
  agreement or laws of general application
• Policy must not be unreasonable
• Policy must be clear and unequivocal
• Policy must be brought to the attention of
  affected employees before employer can act on it
• Affected employees must know that breach of
  policy could result in discharge if that is the
  case
• Policy must be consistently enforced by the
  employer

11
Requirements For Implementing A Drug Testing
Policy

• Policy must not conflict with collective
  agreement
• Consider express or implied prohibitions
• Policy must not conflict with laws of general
  application
• human rights legislation and duty to accommodate
  (the Meiorin test)

12
Requirements For Implementing A Drug Testing
Policy

• Policy must not be unreasonable
• Must be a legitimate need or justification for
  testing in the particular workplace
• Assuming justification for testing is
  established, testing is only allowed in
  appropriate circumstances

13
Justifying The Need For Drug Testing In The
Workplace

• Justifying need for drug testing generally
  requires proof of either
• Two step test
• Evidence of drug or alcohol problem in the
  workplace and
• Alternatives to testing have been considered and
  problem could not be combated in a less invasive
  way
• OR
• Safety sensitive workplace and jobs

14
Justifying The Need For Drug Testing In The
Workplace

• Implications of two step test and safety
  sensitive requirements
• Drug testing in non-safety sensitive workplaces
  or of employees not in safety sensitive positions
  is significantly more difficult to justify
• Employers in non-safety sensitive environment
  left to deal with drug issues via traditional
  means of detection, treatment and, where
  appropriate, discipline

15
Appropriate Circumstances For Conducting Drug
Tests

• Assuming drug testing is justified in the
  workplace, consider six possible circumstances
  for drug testing
• Pre-employment testing
• Testing on transfer or promotion to safety
  sensitive position
• Random testing
• Reasonable cause testing
• Post-incident testing
• Rehabilitation/follow-up testing
• Assess appropriateness of testing on basis of
  Meiorin test and requirement of reasonableness

16
Appropriate Circumstances For Conducting Drug
Tests

• Pre-Employment Drug Testing
• Still somewhat of an open question whether such
  testing is allowed
• Ontario CA pre-employment testing is not
  justified even for safety sensitive positions,
  especially if positive test means non-hire
• ButAlberta CA upholds employers decision not
  to hire job applicant who failed pre-employment
  drug test
• Be careful not to read too much into the Alberta
  decision

17
Appropriate Circumstances For Conducting Drug
Tests

• Testing On Transfer Or Promotion To Safety
  Sensitive Position
• Again, somewhat of an open question whether such
  testing is allowed
• Has been found to be justified where employee is
  moving into a safety sensitive position for the
  first time
• Has been found not to be justified in case of a
  small stable workforce where less intrusive
  methods of detecting drug use were available
• Consider facts and circumstances of
  employer/industry in deciding whether such
  testing is allowed

18
Appropriate Circumstances For Conducting Drug
Tests

• Random Testing
• Random drug testing of employees, even in safety
  sensitive positions, is generally not upheld on
  the basis that such testing
• does not detect impairment, and,
• is seen as an unreasonable interference with
  employee privacy rights

19
Appropriate Circumstances For Conducting Drug
Tests

• Random Testing
• Random drug testing has been allowed in certain
  narrow cases
• Where proven pervasive problem with drugs in the
  workplace and the employer could show that less
  intrusive measures could not or would not work
• Cross border bus service where there was evidence
  of serious drug problems in transport industry,
  limited supervision of employees, and a transient
  seasonal workforce
• Consideration of accommodation of drug dependant
  employees still required

20
Appropriate Circumstances For Conducting Drug
Tests

• Random Testing
• A greater willingness to allow random alcohol
  testing has been shown as such testing can show
  present impairment
• Random alcohol testing of employee may be allowed
  if
• The employee to be tested is in a safety
  sensitive job and
• Sanctions for positive test are individually
  tailored and do not just include automatic
  termination (duty to accommodate substance
  dependent employees to the point of undue
  hardship is required)

21
Appropriate Circumstances For Conducting Drug
Tests

• Reasonable Cause Testing
• Drug testing is allowed where reasonable cause
  exists to believe that the employees work
  performance in a safety sensitive position may be
  affected by drugs or alcohol

22
Appropriate Circumstances For Conducting Drug
Tests

• Reasonable Cause Testing
• Examples of reasonable cause
• Possession of drugs in workplace
• Complaint or report of work related drug use or
  suspect employee behaviour
• Physical signs slurred speech, smell of alcohol
  or marijuana, presence of drug paraphernalia, and
  so on
• Performance indicators difficulty with ordinary
  tasks, unusually slow pace, higher than ordinary
  incidence of errors

23
Appropriate Circumstances For Conducting Drug
Tests

• Reasonable Cause Testing
• Conduct investigation/interview of employee to
  verify whether reasonable cause exists before
  testing. Consider
• Strength of the initial evidence
• Safety sensitivity of the employees position
• Admissions or denials of the employee
• Credibility of alternate explanations given by
  employee
• Reasonableness of requiring a test in the
  circumstances

24
Appropriate Circumstances For Conducting Drug
Tests

• Post-Incident Testing
• Post (significant) incident drug and alcohol
  testing of employees in safety sensitive
  employment is generally allowed
• As part of the employers investigation to rule
  out impairment as a potential cause of the
  incident
• Where the condition of the employee is seen as a
  reasonable line of inquiry
• A less stringent standard than the reasonable
  cause standard

25
Appropriate Circumstances For Conducting Drug
Tests

• Rehabilitation/Follow-Up Testing
• Random unannounced testing is generally allowed
  in cases of safety sensitive employees identified
  as being at greater risk of attending work while
  impaired
• Applies in cases of employees
• with prior violation of drug/alcohol policy
• with prior discipline for drug/alcohol related
  offences, or
• returning to work after drug or alcohol
  rehabilitation

26
Appropriate Circumstances For Conducting Drug
Tests

• Rehabilitation/Follow-Up Testing
• In union setting, requires consultation and/or
  agreement with union
• Typically involves return to work agreement
  between employer, union and employee
• If Union and employee unreasonably withhold
  agreement testing can be unilaterally imposed
• Testing must be limited to a reasonable time
  (typically 2 years)
• Employer must satisfy duty to accommodate in case
  of drug/alcohol dependant employee

27
Other Requirements For A Valid Drug Testing Policy

• No zero tolerance approach
• Testing is part of a comprehensive approach to
  workplace health and safety
• Include employee counseling, assistance programs,
  short and long term disability benefits for
  employees receiving treatment, leaves of absences
  for treatment, return to work agreements

28
Other Requirements For A Valid Drug Testing Policy

• Reasonable testing procedures
• Proper application of otherwise valid policy
• Safety sensitive position?
• Reasonable cause exists?
• Circumstances of incident justified post-incident
  test?
• Test procedures followed?

29
Thank You Any Questions?
30
Drug Testing In The Workplace

• Andrew Woodawood_at_harrisco.com
• T 604 684 6633D 604 891 2242