Mandatory Drug and Alcohol Testing
Broadly speaking, the issues presented with respect to mandatory drug and alcohol testing typically arise upon an employer wishing to set rules for testing in (1) pre-employment screening, (2) random testing, for non-safety-sensitive positions,(3) “reasonable cause” or, post-accident testing where the employer has reasonable grounds to suspect the employee was under the influence of drugs or alcohol at the time the accident, or near-accident, occurred in the workplace.
The arguments presented by the employee is that such actions are a violation of the relevant human rights statute as the action focuses on a disability or a perceived disability.
The modern analysis requires a reference to the test as set out by the Supreme Court of Canada in Meiorin[1] to determine whether (1) there has been shown to be a prima facie discriminatory standard, and once proven the employer must then justify the need for the policy, by showing that the questioned policy (1) has a rational job related purpose, (2) was effected in good faith (3) and was required to accomplish a legitimate work-related purpose, with consideration shown to the nature of hardship suffered by the employer in providing other forms of accommodation.
Prior to the Meiorin decision, the Federal Court of Appeal reviewed the policy of the Toronto-Dominion Bank[2] in July of 1998. The policy, which prohibited the hiring of anyone who tested positive on a mandatory pre-employment drug test, was found to be in violation of the Canadian Human Rights Act.
The majority view was that the policy was in violation of the Act.[3] [4]
The Ontario Court of Appeal reviewed similar issues in its 2000 decision.[5] The issue put before the Court of Appeal was the right of the employer to put in place mandatory drug and alcohol testing procedures for (1) new employment screening, (2) random testing for safety-sensitive positions and (3) random testing for post-incident circumstances and for “cause”.
The Court of Appeal then followed the three step analysis as set out by the Supreme Court in Meiorin.[6]
The first step, as set out by the Court of Appeal was to assess whether the policy document was prima facie discriminatory, that is, did it on its face violate section 5(1) of the Ontario Human Rights Code, namely the denial of the right of equal treatment due to a handicap?[7]
The Court of Appeal stated that the preliminary test involved an examination of the rule to see whether it is prima facie discriminatory.
The appellate court agreed that the policy was prima facie discriminatory as the Code provided protection of those persons who have or have had an actual or perceived handicap.[8]
The next step in the analysis was then to determine whether Imperial Oil, on whom this onus is placed, was able to satisfy the threefold test to determine whether the policy was nonetheless justified.
The specifics of the test was as follows:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
Steps one and two were met. The third component, on which the employer was largely unsuccessful was summarized by the court as the means by which the employer has chosen to accomplish its purpose, being mindful of the need to show that it cannot accommodate those impacted without undue hardship.
The Court of Appeal gave examples of situations in which the employer may run afoul of this requirement:
An employer’s workplace rule may fail to satisfy the third step in the Meiorin test in several ways. For example the rule may be arbitrary in the sense that it is not linked to or does not further the employer’s legitimate purpose; the rule may be too broad or stricter than reasonably necessary to achieve the employer’s purpose; the rule may unreasonably not provide for individual assessment; or the rule may not be reasonably necessary because other means, less intrusive of individual human rights, are available to achieve the employer’s purpose.
The court found that drug testing for safety-sensitive positions did not satisfy this test, for two reasons. The first was that the technology of drug testing showed only past use and not present impairment. The second was that the discipline imposed was rigid, calling for only termination.
The Court of Appeal found that the mandatory drug testing of new applicants failed also for the same two reasons.
On the issue of random alcohol testing for safety-sensitive positions, the court disagreed with the Board of Inquiry and the Divisional Court and found that this aspect of the policy was enforceable. Alcohol testing, unlike drug testing, did reveal actual as opposed to past impairment.
While the Court allowed in theory alcohol testing in safety-sensitive positions, Imperial Oil’s policy was nonetheless in violation of the Human Rights Code as it called for a uniform discipline, which was not in accord with the duty to show reasonable accommodation.
The Board of Inquiry found that alcohol testing was appropriate in such situations, a conclusion also shared by the Court of Appeal.
The Board determined that drug testing was allowed only if the employer could show that it was “necessary as one facet of a larger assessment of drug abuse”. The appellate court did not interfere with this conclusion.
A further issue before the Board was the term of Policy which mandated the disclosure of a past or present substance abuse problem in a safety-sensitive position. The consequence of such disclosure was a reassignment to a non-sensitive position followed by the eligibility to re-apply following a two year rehabilitation program and a period of abstinence for five years. Success in reinstatement was coupled to the obligation to submit to random testing.
In applying the same analysis, the court found this provision to be prima facie discriminatory and also to have satisfied the first two, but not the third aspect of the threefold test.
In addition, the two year rehabilitation and five year abstinence prior to reinstatement was excessive.
Further, the imposition of post-reinstatement controls, while found to be permissible when tailored to individual circumstances, were not considered as acceptable when used as a blunt instrument.
The decision of the Court of Queen’s Bench of Alberta followed in April of 2003.[9]
The employer had passed a resolution requiring drug and alcohol testing for cause and also random testing for safety-sensitive positions. A positive test, or a refusal to take a test when requested, would result in disciplinary sanctions including termination for cause.
Two employees, Sonia Jacknife and Cassandra Collins refused to be tested. Ms. Jackknife at the hearing Panel showed evidence of treatment for alcoholism while Ms. Collins led no evidence of a disability.
With respect to the Jacknife complaint, the Panel assumed that the Ontario decision in Entrop was correct and hence the claimant showed a prima facie case of discrimination. However, it concluded that the employer had shown a bona fide occupational requirement (“BFOR”).
As to the second complaint, the Panel concluded that as there was no evidence led of a disability or a perceived one, that the complainant had not shown a prima facie case and the complaint was hence dismissed. The mere fact of the refusal to be tested, as was argued, could not lead to a perception of a disability, the Panel concluded.
On appeal, the court concluded that as Ms. Collins was terminated because she refused the testing, it treated her as if she were an alcoholic or drug dependant, this being the same result as if she took the test and failed it. This, the court concluded, revealed a perception of a disability and hence a prima facie case was shown.
The Court, however, agreed with the Panel that the employer had shown a BFOR by satisfying the three part test and upheld the dismissal of both complaints for these reasons.
On the third test, the Court concluded that the Policy was reasonably necessary due to the unending problems with alcohol on the settlement.
The 2003 decision under the Canadian Human Rights Act of the Canadian Human Rights Tribunal[10] reviewed the policy of the employer which mandated the termination of the applicant due to a positive drug test in the currency of his employment as a bus driver.
The employer argued that the legislation was not applicable to the employee as it had not asserted that he was a drug addict and further that the concept of perceived disability did not apply to drug dependence and in any event, the employer did not perceive the employee to be a drug addict.
While the employer correctly asserted that the federal legislation did not include a specific provision for a perceived disability, the Tribunal determined that the corrective interpretation, by a purposive remedial interpretation, required that such be read into the Act.
The Tribunal, however, concluded that in order to show a prima facie case of discrimination, the employee still must show evidence that the employer perceived him to have such a disability.
The evidence showed the contrary, namely that the drug test was requested as the employer had discovered it had failed to implement a pre-employment drug test and that such request was not factually driven, such as being due to a suspicion that he was a drug user.
For this reason, the complaint was dismissed as no prima facie case was shown.
However, the Tribunal did consider also whether the employer’s drug testing policy violated section 10 of the federal act[11] and whether such policy adversely impacted other individuals or classes of persons.
On this subject, the Tribunal found the policy prima facie discriminatory as it inherently adversely treated persons who were drug dependent in pre-employment tests.
As to the employer’s onus to show that the three part test of BFOR was met, the Tribunal agreed that (1) there was a rational connection to bus transportation and (2) it was implemented in good faith. As to the third component of the test, the employer was able to demonstrate that the testing policy was reasonably necessary to accomplish the goal of road safety, but as to the issue of undue hardship, the employer’s case failed.
The employer, the Tribunal concluded, should have extended the opportunity of rehabilitation to drivers found by testing to be in violation of the drug policy, which it had extended to those who made voluntary disclosure.
Further new applicants who tested positively should be allowed accommodation where factually possible.
The Human Rights Panel of Alberta heard a similar complaint, a decision made in May of 2005.[12]
The employer had argued that it had chosen to implement a drug test due to a suspicion that the employee was under the influence of drugs and in fact the entire crew was so suspected. The Panel chose not to believe this evidence and concluded that a random blanket test was effected on the basis that all members were perceived to be potential drug abusers.
The Panel also concluded that upon the applicant testing positive, he was perceived to be a substance abuser and terminated on the assumption that he was likely to be impaired on the job and not fit for work. Accordingly the testing was found to be prima facie discriminatory.
In this case, the Panel found that the employer could not demonstrate that the policy in question was a rational standard. As to the second test of good faith, the Panel concluded that this was also not met.
The employer also failed the accommodation to the point of undue hardship submission, on the basis that paid rehabilitation was offered only to those who made voluntary disclosure and offered reinstatement while those who are in denial are terminated without such assisted rehabilitation. Also the Panel concluded that a re-assignment to an alternate position, given a workforce of 1,000 employees in Canada was a reasonable expectation.
The Court of Queen’s Bench of Alberta in the September 2006[13] also reviewed the issue of drug testing.
John Chaisson had applied for employment as a receiving inspector for the company’s Syncrude plant. He was offered employment which was terminated nine days later, when it was discovered that he had tested positive on the mandatory pre-employment drug test.
The complainant’s evidence was that he was a recreational user of cannabis and not an addict. The employer’s evidence was that there was no suspicion or discussion that the employee was addicted, no doubt intended to prove no apparent perception of a disability.
The Human Rights Panel dismissed the complaint, as the employee could show no prima facie case as he was not suffering from a real or perceived disability. The Panel did state that there was no accommodation within the Policy but given the preliminary finding that there was no prima facie case established, the complaint was dismissed.
The complainant argued, on appeal, that the test to be applied was whether the policy was prima facie offside on its face, after which the tri-parte test was to be applied.
The Panel, ironically, agreed with this submission that the policy itself was contrary to the Code protections, but stated that as a legal test, there must be evidence before it that the employee had a handicap or was perceived to have one.
On the first appeal, the Court agreed that the Panel applied the correct process in applying the one, then the two, three step test.
The issue presented on appeal was not whether the employee need show a factual premise for the prima facie case but rather, as the employee conceded this issue, it was argued that by the fact of termination following a positive test, he was thus seen and perceived to be disabled.
The Court agreed that the policy was on its face prima facie offside, a conclusion which was shared by the Panel. Hence a policy which prohibited the hiring of drug dependent applicants would be required to satisfy the threefold test of Meiorin.
As the applicant was not drug dependent, the issue arose on appeal as to whether the employee could seek the protection of the Code as a recreational user.
The Court reviewed many precedent decisions and concluded that the Ontario Court of Appeal decision in Entrop was the correct approach, namely, that anyone testing positive by pre-employment screening under this policy was entitled to the protection of the Code. Actual evidence of the employer’s perception of a handicap on the facts was not required.
The employer’s perception of a disability, the court concluded, can be seen from a drug testing policy which fires persons who have tested positive. The policy treats the recreational user as if they were drug dependent, the court observed.
This decision was reviewed and reversed on further appeal to the Court of Appeal in December of 2007. The Court of Appeal disagreed with the conclusion made by the chambers justice.
Given that there was no affirmative evidence of a perceived disability and that the employee admitted to only recreational use, the decision was reversed as showing no prima facie case.
The reason for the policy and its uniform penalty could not be seen as reflective of a perception of a disability, but rather was intended to promote workplace safety. Leave to appeal was declined.
In the intervening period, prior to the above Alberta Court of Appeal decision, the Ontario Divisional Court released its February 2007 decision. [14]
Alan Chornyj had complained to the Commission by asserting that the company’s pre-employment drug testing was offside the Code following the employer’s decision to withdraw its offer of employment which was conditional on a negative drug test.
The Tribunal had dismissed the employer’s motion to dismiss in which the employer had argued, in part, that the use of cannabis without evidence of an actual or perceived disability did not find codified protection and hence was doomed to fail.
The Divisional Court disagreed and ordered that the Tribunal be prohibited from hearing the case. The Court referred to[15] a prior decision which was used to assist the Divisional Court, ironically, in finding in this instance that there was no evidence direct or to be inferred from the terms of the policy of the perception of a disability.
The Divisional Court stated that caution should be exercised in concluding that a given policy must lead to the inference that it hence perceives a disability.
In this instance, the policy was not rigid, a feature that well assisted the employer’s plea:
Given that (1) the employee was not an addict and (2) the policy could not be interpreted in such a manner to show that the employer’s policy perceived a positive test as a disability and (3) there was no affirmative evidence to show that the employer treated the complainant in such a manner to show a perceived disability, the writ of prohibition, by all accounts, an extra-ordinary remedy, followed.
Much to the same effect is the 2007 decision of the Canadian Human Rights Tribunal.[16] The Tribunal saw no prima facie case as the employee had not established that he was adversely treated due to perception that he was an alcoholic.
The Tribunal distinguished Entrop, holding that the employer’s purpose was not to determine future behavior but rather impose discipline on those who had used alcohol or drugs on the job.
The method of this analysis was debated by the Supreme Court of Newfoundland & Labrador in a March 2011 decision.[17]
The applicant had been terminated due to a positive drug test. His evidence was that he was not a drug addict and hence the claim required a foundation in evidence that he was terminated due to a perceived handicap to fit within the protections of a human rights remedy.
The issue arose as to at what stage this evidentiary issue was to be considered. The applicant, who was unsuccessful before the human rights Board of Inquiry, argued on review that the first test to be applied was whether the employer’s policy was prima facie discriminatory on its face. Presuming so, the employee argued then that the three step process of Meiorin should be applied.
At the Board level, the Board reviewed the evidence before it to conclude that the applicant was neither an addict, nor perceived to be an addict by the employer. The fact that the policy called for termination in the event of a positive finding did not allow for the conclusion that the employee was viewed as an addict.[18]
On appeal, the employee argued that no evidence should be considered in applying the first test as to whether the policy was prima facie discriminatory. That analysis, it was argued, should be based on the contents of the policy simpliciter. The argument based on the evidence of perceived disability should, it was argued, be considered only in the context of the BFOR submissions.
This argument was not successful. The Court agreed with the Board and the counsel for both the employer and the Commission who argued to the contrary.
The Court also concluded that should there be no prima facie case established, needless to say, there is no analysis required of a BFOR and hence no need to engage the three part test.
The synthesis of these cases post Entrop is that reliance of the employee upon the policy document to lead to a presumption of a perceived disability is a risky proposition. The employee should be prepared to lead evidence of a disability or that the employer perceived a disability, past, present or future.
[1] British Columbia v BCGSEU. (“Meiorin”)
[2] Canada (Human Rights Commission) v T-D Bank
[3] a concurring opinion of MacDonald J. A. spoke to the issue of direct as opposed to indirect discrimination which is not required for this purpose
[4] The significance of this distinction was then related to the defences available, one which was eliminated by the later decision of the Supreme Court in Meiorin. The Bank also failed in its assertion that there was a BFOR in the views of Roberston J. A., one which was not supported by the concurring decision of MacDonald J. A. with respect to direct as opposed to indirect discrimination.
[6] It is to be noted that this latter decision was delivered in September of 1999, and that of the Court of Appeal in July of 2000. Accordingly neither the Board nor the Divisional Court had the benefit of the guidance provided by the Supreme Court, which made a fairly dramatic departure from the prior method of analysis by discarding the distinction between direct and adverse effect discrimination.
[7] This became an important issue in later cases. This issue is important as later cases have required the complainant to adduce evidence that there was a prima facie case on the facts, that is, that the complainant must show that he has a handicap or was perceived by the employer to have one, in order to engage the three part test.
[8] A noteworthy point is that the Imperial Oil policy, as found by the Court, treated the recreational user as if he were a substance abuser. One might normally expect that an occasional user who is not suspected of a drug addiction would not be entitled, absent this wording, to the protections of the Code. Architects of future policies may wish to pay heed to this.
[9] in The Director of Human Rights and Citizenship Commission v Elizabeth Metis Settlement
[10] in Milazzo v Autocar Connaisseur Inc (MacTavish)
[11] 10. It is a discriminatory practice for an employer, employee organization or employer organization
- to establish or pursue a policy or practice, or
- to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[13] the date of the final corrections, the substantive decision being released in May of 2006 in the decision of Chaisson v Kellogg Brown & Root, written by Madam Justice S.L. Martin
[14] in Weyerhaeuser Company Limited v Ontario Human Rights Commission
[15] the chambers decision of Kellogg, Root and Brown
[16] Doucet delivered in July of 2007 in Witwicky v Canadian National Railway
[18] As a parenthetical note, the Board also noted that there was no evidence before it, as there was in Entrop, to show that a positive drug test did not reflect timely impairment.