Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2017 Answer: An employer does not have a gen- eral right to subject its employees to drug and alcohol testing. However, drug and alcohol testing policies may be implemented and enforced if the policy refl ects an appropriate balancing of interests, between the employ- er's duty to provide a safe workplace and an employee's privacy rights: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. In Irving Pulp & Paper, the Supreme Court of Canada noted that when a workplace is dangerous, employers are generally entitled to test employees who occupy safety sensitive positions, if there is "reasonable cause" to be- lieve the employee is impaired while on duty, where the employee has been directly in- volved in a workplace accident or signifi cant incident, or where the employee is returning to work after treatment for substance abuse. Where a post-incident drug or alcohol test generates a positive result, the employer must ensure that its response is consistent with the applicable human rights legislation, and in particular that it has satisfi ed its duty to accommodate any disability (alcoholism or substance dependence) that aff ected the em- ployee's ability to comply with the employer's policy. In the recent decision in Stewart v. Elk Val- ley Coal Corporation, the Supreme Court of Canada upheld the dismissal of a mine work- er who tested positive for cocaine following an accident. e employer's policy required employees to disclose any dependence or addiction issues before any drug-related in- cident occurred. If an employee disclosed such information, the employee would be of- fered treatment by the employer. However, if an employee failed to disclose, was involved in an incident, and then tested positive for drugs, the employee would be dismissed. e court upheld the Alberta Human Rights Tri- bunal's fi nding that the employee was not ter- minated because of an addiction, but because he had breached the employer's policy. e court rejected the employee's argument that he did not disclose his addiction because he was in denial. It found that even if he was in denial, he still knew he should not take drugs while working, had the ability to refrain from taking them, and had the capacity to inform his employer about his drug use. If an employer has carefully drafted policy that provides for post-incident drug and alco- hol testing, an employee's refusal to take such a test may enable the employer to view the refusal as a serious violation of the policy and provide grounds for signifi cant discipline: Rio Tinto Alcan Primary Metal (Kitimat/Kema- no Operations). In Elk Valley Coal Corp.-Fording River Operations, (Edson Grievance), the employ- ee was dismissed after he refused to provide a urine sample following a workplace accident. e arbitrator found that the employer was justifi ed in requiring the employee to submit to a drug and alcohol test, and that his refusal to take the test was a violation of the em- ployer's policy and amounted to culpable in- subordination. However, the arbitrator ruled that dismissal was an excessive response, and substituted a four-month suspension. e ar- bitrator made the reinstatement conditional on the employee's agreement to undergo two random drug tests within the next six months, and to acknowledge that if either test was positive, the employer could deal with the violation as laid out in its policy. If an employer wishes to treat a refusal to take a post-incident drug or alcohol test in the same manner as a positive test result, it should ensure this is clearly spelled out in its policy. In Vancouver Drydock Co., the employer asked the employee to take a test to determine blood alcohol content, after a supervisor smelled a slight odour of alcohol on his breath. When the employee refused, he was notifi ed that the refusal would be treated as a positive test result and he would be suspended. e arbitrator ruled that the employer did not have reasonable grounds under its policy to require the employee to submit to an alcohol test. He found that the policy was vague in terms of how the test would be administered and the level of blood alcohol that would result in a positive fi nding of impairment, and was completely silent on the consequences of refusing to take a test. e arbitrator ruled that these fl aws disentitled the employer from treating a refusal as a positive test result. Drug and alcohol testing policies must be carefully designed to ensure that they are drafted in clear and unambiguous terms, and that they comply with the law. At a mini- mum, the policy should outline the circum- stances where a test will be required, how the test will be administered, how a posi- tive result will be determined, and what the consequences will be for an employee who refuses to take a test. For more information see: • Irving Pulp & Paper Ltd. v. CEP Local 30, 2013 CarswellNB 275 (S.C.C.). • Stewart v. Elk Valley Coal Corp., 2017 Car- swellAlta 1023 (S.C.C.). • Rio Tinto Alcan Primary Metal v. CAW- Canada, Local 2301, 2011 CarswellBC 353 (B.C. Arb.). • Elk Valley Coal Corp. and USWA, Local 7884 (Edson), Re, 2005 CarswellBC 3950 (B.C. Arb.). • Vancouver Drydock Co., [2009] B.C.C.A.A.A. No. 77 (Munroe) (B.C. Arb.). Refusal to take post-incident drug test Question: When an employer has post-incident drug and alcohol testing, can an employee be disciplined for refusing to take a test the same as if the test was positive? Refusal to take post-incident drug test Question: alcohol testing, can an employee be disciplined for refusing to take a test the same as if the test was positive? with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as dress codes and accommodation, managing diverse workplaces, and marijuana in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. 2 | October 25, 2017

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