The latest on alcohol and drug testing.

The Ontario Court of Appeal has provided the latest judicial pronouncement on alcohol and drug testing in the workplace in Entrop v. Imperial Oil Limited (October 23, 2000). A 1992 Imperial Oil drug and alcohol testing program at two Ontario refineries included:

* pre-employment testing of everyone;

* random, unannounced drug and alcohol tests for employees in safety-sensitive positions;

* automatic dismissal if a test was positive;

* drug and alcohol testing before assuming any safety-sensitive position;

* mandatory disclosure of current or past substance abuse by all employees in safety-sensitive positions;

* mandatory reassignment to a nonsafety-sensitive position for employees who disclosed current or past abuse problems;

* testing for all employees "post-incident" or for cause.

Mr. Entrop disclosed a past alcohol problem (seven years earlier) and was immediately transferred. He was eventually reinstated in his former position, but he filed a human rights complaint alleging discrimination because of handicap. The Commission and the Ontario Divisional Court found discrimination.

The Ontario Court of Appeal applied the approach of the Supreme Court of Canada in Meiorin (the B.C. Firefigher's case). First the court must determine whether the rule is prima facie discriminatory. If it is, then the court must determine if the rule is a bona fide occupational requirement (BFOR).

Was there Prima Facie Discrimination?

The court had no difficulty determining that drug and alcohol dependencies are handicaps under the Code. Persons testing positive, whether real or perceived substance abusers, are adversely affected by the Policy and therefore the testing provisions were found to be prima facie discriminatory.

Were the testing provisions justified as a BFOR?

Here the Court applied the threefold test from Meiorin:

1. Did Imperial Oil adopt alcohol and drug testing for a purpose rationally connected to the performance of the job?

Promoting workplace safety by minimizing the possibility employees will be impaired by either alcohol or drugs is a legitimate objective. Therefore, the first step of the Meiorin test was met.

2. Did Imperial Oil adopt these testing provisions in an honest and good faith belief that they were necessary to accomplish the company purpose?

Again, Imperial Oil had met this test. They had consulted widely with employees, occupational health and safety experts and substance dependency experts.

3. Were the testing provisions reasonably necessary to accomplish Imperial Oil's purpose?

The Court came to several conclusions:

(a) The random drug testing provisions had a fundamental flaw. Drug testing cannot measure present impairment, but only past abuse. Therefore, drug testing cannot provide evidence of impairment or likely impairment on the job. Drug testing, therefore, is not reasonably necessary to achieving an employer's legitimate goal of a safe workplace free of impairment.

(b) The sanction for a positive test was too severe, more stringent than needed for a safe workplace and not sufficiently sensitive to individual capabilities. Automatic termination for all employees after a single positive test was broader than necessary. In some cases termination may be justified; but in others, the employee's circumstances may call for a less severe sanction. Imperial Oil failed to demonstrate why it could not tailor its sanctions to accommodate individual capabilities without incurring undue hardship.

(c) Pre-employment drug testing has the same problems as (a) and (b) above.

(d) Alcohol testing may be reasonable. Breathalyzer testing can show impairment. Imperial Oil could legitimately take steps to deter and detect alcohol impairment among its employees in safety-sensitive positions. For employees in safety-sensitive positions, where supervision is limited or non-existent, alcohol testing is a reasonable requirement.

(e) Random alcohol testing for employees in safety-sensitive positions, though reasonable, will not satisfy the third step in the Meiorin test unless Imperial Oil has met its duty to accommodate. The provision of the policy calling for dismissal in all cases is inconsistent with the duty to accommodate individual differences and capabilities to the point of undue hardship. Accommodation should include consideration of sanctions less severe than dismissal and treatment or rehabilitation programs.

(f) Alcohol testing is sufficiently related to job performance to justify its use post-incident or for cause. Drug testing post-incident or for cause may be justifiable, but only if it is a necessary facet of a larger assessment of drug abuse.

Mandatory disclosure

The policy's mandatory disclosure and reassignment provision were found to be discriminatory. They were not a BFOQ because:

1. It is unreasonable to require employees to disclose all past substance abuse problems. Disclosure is only required until the risk of relapse or recurrence is no greater than the risk in the general population (six or seven years).

2. Automatic reassignment upon disclosure past substance abuse is not reasonably necessary because the mandatory disclosure requirement itself is too broad and it fails to accommodate individual differences and capabilities. While removal of an employee with an active or recently active problem might be justified, Imperial Oil failed to establish that automatic reassignment was reasonably necessary in all cases.

Anne M. Wallace is a lawyer in Saskatoon with Wallace Meschishnick Clackson Zawada.