Workplace Wire reports that, on the heels of the Supreme Court of Canada June ruling in Irving Pulp and Paper, which severely limited the circumstances when random drug and alcohol testing is permissible in the workplace, an Ontario arbitrator recently held that mandatory pre-access alcohol and drug testing is an unreasonable exercise of management rights. The testing violates the privacy rights of employees, and constitutes an infringement of the Ontario Human Rights Code, the arbitrator found.
For employers, this decision adds another restriction on testing programs. It identifies strict methods for employers to implement random and pre-access testing to maintain a safe environment in safety-sensitive workplaces.
The grievance in Mechanical Contractors Association Sarnia (MCAS) v. United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663 (UA) arose when MCAS decided to comply with another company’s policy that requires contractors to undergo mandatory pre-access alcohol and drug testing.
In assessing that policy, the arbitrator balanced the various competing interests between the employer and the employees. When interpreting a decision by management to implement a policy outside of the negotiated terms of a collective agreement, a balance must be struck between the safety interests of employers and the privacy rights, liberty, and personal autonomy of employees, the arbitrator found.
In Irving Pulp and Paper, the employer’s interests prevailed and a drug testing program was found to be justifiable, where there is reasonable cause to believe that an employee was impaired while on duty (reasonable cause testing); when an employee is involved in a workplace accident (non-random post-incident testing); or when an employee returns to work following treatment for substance abuse.
While evidence that demonstrates extenuating circumstances will vary from case to case, that evidence must be workplace-specific, cogent, direct, and not anecdotal. An employer must demonstrate that testing will actually improve workplace safety, the arbitrator found, noting that this is the high threshold intended in Irving Pulp and Paper.
In the recent grievance, the arbitrator found that there had been no history or current issue with alcohol or drug-related incidents.
No statistical correlation exists to show a decrease in workplace injuries when a testing program is in place and the testing programs are not an indicator of an employee’s post-testing behaviour, the decision notes. An employer would need to show a history of alcohol or drug-related incidents at the particular workplace.
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