Canadian lawyers say no to pre-access alcohol and drug testing
In recent years, the drug testing of employees has become a more common and widely accepted practice. Companies that test job applicants for drugs before employing them believe that they can ensure that they have a more reliable and effective workforce. However, lawmakers in Canada have upheld an earlier decision to invalidate the pre-access alcohol and drug testing policy of one employer.
The original case was brought in December 2012, when Suncor Energy Inc. routinely tested all employees for alcohol and drugs before they were allowed access to a company site in Sarnia, Ontario. The action began when the United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, a union set up to protect the rights of workers, contested the decision by Mechanical Contractors Association, Sarnia, to test employees.
The Sarnia Review
The legal action has since become known as the Sarnia Review and is the most recent case in which an employer has been forced to cease its drug and alcohol testing policy in Canada by rendering the policy unenforceable.
One of the main purposes of the review was to decide if pre-access testing is a form of conduct-based testing or is random testing. According to Canadian law, conduct-based testing should only be used when an employee is in a safety-sensitive position following an incident, as a condition of returning to work following a positive test, or when there is good reason to believe that a person is impaired at work.
Random testing, on the other hand, should be carried out only in very narrow circumstances, usually when a worksite has experienced a serious problem, in which case testing can only be used to quickly test employees for the presence of drugs in order to reduce safety risks.
The court dealing with the Sarnia Review decided that pre-access testing is more like random drug testing than conduct-based testing and therefore should not be carried out on all employees without a specific reason. Pre-access testing requires an employer to meet a high threshold to justify random testing and in Suncor’s case this was not met.
In the UK, random testing is still the most accepted form of drug testing, because if it is carried out correctly it does not discriminate. However, random drug testing does infringe on the rights of all employees and some feel strongly that no company has the right to analyse blood, urine or hair follicle samples of its employees without good reason.
The Suncor Arbitration judicial review is set to take place in 2015 and the outcome will play a major role in the development of the laws governing drug testing in Canada.
The Sarnia Review is not binding outside Ontario and companies can still make individual employment contracts that include drug testing as part of the health and safety framework. The big question is, will pre-access drug testing ever be enforceable by law?