Random drug testing has always been a controversial issue in Canada. Since the inception of testing programs inn the late 1980s, random testing has been challenged on both contractual and human rights grounds. Arbitrators have generally permitted random drug testing as part of an individual employees’ rehabilitation in the context of a return to work or last chance agreement. However, universal random testing has been regarded as justifiable only in the rarest of circumstances.
An Ontario arbitrator formulated a two step inquiry for assessing the legitimacy of drug testing generally in a 1991 arbitration involving Provincial – American Truck Transports:
- Is testing a necessary based on evidence of a drug and/or alcohol problem in the workplace?
- Is it reasonable, having regard to less invasive available alternatives?
The Imperial Oil Ltd. v. CEP, local 900, the arbitrator board suggested random drug testing might be viable if “an employer could marshal evidence which compellingly demonstrated an out –of –control drug culture taking hold in safety sensitive workplace.”
Other wise , employees right to privacy and personal integrity overbalanced employers’ right to maintain a safe workplace where there was no explicit agreement to allow random testing.
The random testing was struck down as offending specific “respect and dignity” provisions of the collective agreement and overreaching employer rights in general. The board was not swayed by the fact that a new testing method had been used that did reveal impairment, albelt with delayed results.
The Ontario court of appeal addressed the legitimacy of random drug testing in a human rights context in the 2000 case, Entrop v, imperial oil limited. The drug and alcohol policy at issue there provided for random testing for both alcohol and drugs. The court held both forms of random testing were discriminatory.
Although the random alcohol testing of employees in safety sensitive positions was justifiable as a bona fide occupational requirement, random drug testing was not. Nike the breathalyzer tests, the drug tests did not show when a substance had been ingested or whether the employee had been impaired at work. These limitations prevented the tests from being reasonably necessary to minimize on the job impairment.