The Ontario Divisional Court has rejected the plan proposed by the Ottawa airport to carry out random drug tests on its firefighters due to the lack of evidence that there is a substance-abuse problem that would warrant such a “highly intrusive” invasion of privacy. However, the Supreme Court specifically noted in their determination of the 2013 Irving case, that random testing IS justifiable in situations where there is a “dangerous workplace” and “enhanced safety risks, such as evidence of general problem with substance abuse in the workplace”.
The Ottawa Macdonald-Cartier International Airport Authority had originally implemented its workplace drug testing policy in December 2018, and the firefighters’ unions agreed to provisions that called for testing of employees suspected of being impaired, after an accident, or after an addiction treatment program. However, the union opposed the requirement for random, unannounced urine screens being applied to all the firefighters. Moreover, the policy also affected other airport employees in safety-sensitive jobs.
After the Ottawa airport had attempted to conduct its first random drug test on a firefighter, the employee and the union filed grievances.
Consequently, the arbitrator ruled in favour of the Airport Authority, citing a 2017 decision involving employees of the Toronto Transit Commission (TTC), in which the Ontario Superior Court had rejected a union request to impose a temporary injunction on the TTC’s new random drug-testing policy. Specifically, as part of this precedent, the judge noted there was evidence of a chronic drug and alcohol problem among a minority of the transit agency’s workers.
However, according to the Divisional Court, the arbitrator in the Ottawa airport dispute was wrong to rely on the TTC case as precedent, where the judge ruled on an injunction request, and not on the policy. Specifically, a three-judge panel of the court overturned an arbitrator’s ruling that had upheld the airport’s policy, stating that the earlier adjudicator had ignored case law that severely restricts random drug testing of employees, even in safety-sensitive occupations. According to the panel, the arbitrator should have considered the Supreme Court’s “Irving” decision made in 2013, which set out guidelines for when random, unannounced tests can be justified.
This decision makes it very clear that if employers are looking to add random testing to their drug testing policy requirements that they must first establish that there is a pre-existing drug or alcohol abuse issue in the workplace. When this issue has been established, as it was with the TTC and Irving rulings, the random drug testing program is upheld by the courts as justifiable.
The latest ruling highlights the differences between the Canadian and U.S. approaches to workplace drug testing, said lawyer Sean McGee in his interview with the National Post.
“It’s almost universally referred to as the Canadian model,” said McGee, who represented the fire crew’s union. “In the U.S., they’ve struck a different balance … Even if you have no problems in the workplace, in many situations an employer will be able to say ‘Pee into a cup or provide some other kind of sample.’”
Currently, there is no provision in the Canada Labour Code to address the use of drugs and alcohol in the workplace. Importantly, the Code requires employers to develop and implement Hazard Prevention Programs to protect employees from workplace hazards, which may include policies related to impairment including the use of drugs and alcohol. This mean that if there is a pre-existing drug or alcohol abuse issue in that workplace, the employer is keeping within their requirement to provide a safe workplace for all employees by implementing a random drug and/or alcohol testing program for their employees.
Workplace drug and alcohol testing is currently one of the most effective tools to reduce liability and risk, especially for safety-sensitive positions. Moreover, implementing a drug-testing program in the workplace can help to create a healthier and safer workplace, while decreasing absenteeism and improving productivity.