Canadian HR Reporter

CANADIAN HR REPORTER June 12, 2017 EMPLOYMENT LAW 5 JOINT VENTURE BY: Shana French and Brian Wasyliw LEGAL VIEW DRAFTING > pg. 12 Case law on testing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.). Irving's random testing policy was struck down by an arbitration board as a signifi cant encroachment into employee privacy that was "out of proportion to any benefi t." The company's alcohol-related incidents were insuffi cient to demonstrate a "problem in the workplace." That decision was overturned, but the Supreme Court of Canada later found random testing to be unreasonable: "The expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe." Hotz Environmental and TC, Local 879 (B. (G.)), Re, 2016 CarswellOnt 1824 (Ont. Arb.). The employer had a drug and alcohol policy that allowed employees who tested positive for drugs or alcohol to return to work with random followup testing. Employees who refused a test were also subject to the followup testing. The arbitrator found that while a refusal wasn't the same as a positive test, the employer would have no other way of knowing if someone was a recreational user or addict. However, the policy's description of the testing process was vague. While the concept was reasonable, the wording should be amended to talk about individualized assessments. Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.). The arbitration board found Suncor had failed to show an existing problem in the bargaining unit that justifi ed the intrusive nature of random testing. The court disagreed, fi nding the Irving test only required evidence of a general "workplace" problem with drugs and alcohol. The court held that workplace safety is an aggregate concept, particularly in dangerous environments. A broader focus on the overall problem, as opposed to a narrow focus on the bargaining unit, was consistent with an employer's obligation to ensure the safety of its entire workplace. Source: Canadian Centre on Substance Abuse, 2013 figures Average age a Canadian fi rst smokes marijuana. Canadian adults (aged 25+) who used pot in the past year (8%). Canadian youth (15-24) who used pot in the last year (24.4%). 2 drugs A tale of MARIJUANA With legalized marijuana, what drug and alcohol testing is permissible? On April 13, the government of Canada intro- duced Bill C-45, the Cannabis Act, which, once passed, will remove from the coun- try's Criminal Code incidental marijuana consumption and possession. Expected to become law by July 1, 2018, the act will also regulate marijuana production, dis- tribution and retail sale. e legalization of marijuana has heightened employer concerns that employees will come to work impaired. Now, more than ever, employers are asking, "When and how can an employer test for drugs and alcohol in the workplace?" e answer: While testing may still be rare, scientifi c advances, driven largely by law enforcement seeking eff ective ways to roadside test for drug-related impairment, have meant some of the more com- pelling historical and technological barriers to drug testing are (or will soon be) a thing of the past. Historically speaking… Traditionally, drug and alcohol testing in Canadian workplaces has been permitted sparingly as courts and arbitrators tried to balance the competing interests of privacy, human rights and safety. Testing has been allowed where the position at issue is considered safety-sensitive and: • the employer has reasonable cause to believe the employee is impaired at work • the employee has been involved in a signifi cant workplace inci- dent or "near miss" • it is a component of a return-to- work arrangement following an employee's treatment for drug or alcohol addiction. Pre-employment testing has been considered impermissible because a failed test does not mean a candidate will attend work impaired, only that she has used alcohol or a controlled substance in the past — and screening on this basis alone could violate hu- man rights legislation. Random testing was considered impermissible as an unnecessary and unjustifi ed infringement on an individual's privacy rights. Drug testing (as opposed to alco- hol testing), in particular, has been criticized because traditional methods were seen as intrusive (such as a blood test) and could not determine current, or level of, impairment. In 2013, the Supreme Court of Canada gave employers some lee- way. In Communications, Energy and Paperworkers Union of Can- ada, Local 30 v. Irving Pulp & Pa- per, Ltd, the court confi rmed an employer may conduct random alcohol testing for a safety-sensi- tive position if it can establish it operates a dangerous workplace and there is a general workplace problem with alcohol abuse. Fast-forward to 2017 and the law has begun to catch up with technology. TTC takes a stand In October 2010, the Toronto Transit Commission (TTC) implemented a "Fitness for Duty Policy" designed to "ensure the health and safety of employees and the safety of customers and members of the public." e pol- icy provides for drug and alcohol testing of employees in safety- sensitive and specifi ed manage- ment/executive positions, under the following circumstances: • Where there is reasonable cause to believe drug or alcohol use re- sulted in an employee being unfi t for duty. • As part of an investigation into a signifi cant work-related incident or accident. • In the context of a return-to- work plan following treatment or after a violation of the policy. 16.1 1 in 12 1 in 4 ALCOHOL Average age a Canadian fi rst drinks alcohol. Canadian adults (aged 25+) who drank alcohol in the past year. Canadian youth (15-24) who drank alcohol in the past year. 16 76.5% 72.6%

• Cover