FOR LAWYERS. Outline. Panel: Murray Murphy, Melissa Everett Withers & Ruth Trask Moderator: Harold Smith, QC. November 5, NL LEG SEMINAR

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1 Social Drug Media and Alcohol Testing FOR LAWYERS Panel: Murray Murphy, Melissa Everett Withers & Ruth Trask Moderator: Harold Smith, QC 1 Outline Introduction Human Rights That Duty to Accommodate! Leading Cases including the one you ve been waiting for from the Supreme Court of Canada! Summary Question Period 2 1

2 Introduction The debate continues. Workplace drug and alcohol testing raise competing interests and values that can be difficult to reconcile. We ll be looking at the issue of human rights, leading cases and some cases of interest from right here in Atlantic Canada. 3 Duty to Accommodate The duty comes alive (in the context of drug and alcohol policies) when a standard results in discriminatory consequences based on a perceived disability or results in an individual being treated differently based on either a perceived or actual disability. Duty to either show a bona fide occupational requirement (BFOR) or accommodate the individual to undue hardship. 4 2

3 Duty to Accommodate Meiorin (1999: SCC) a.k.a. BC Firefighters Case 5 Leading Cases Entrop v. Imperial Oil (2000: OCA) 6 3

4 Leading Cases Entrop (2000: OCA) CA found actual AND perceived discrimination policy treated anyone testing positive as a substance abuser CA also said: Random alcohol testing is justifiable in a safety sensitive work environment, but the employer must also meet the duty to accommodate; Random drug testing could not be justified because it did not measure current impairment. Automatic termination was too severe; and Reasonable cause and post-incident testing for both alcohol and drugs justified, but must be part of a larger drug assessment program. 7 Leading Cases Entrop (2000: OCA): Fallout Canadian Human Rights Commission introduced policy saying testing is acceptable in the following situations as long as it is part of a broader program of medical assessment, monitoring and support. 1. Reasonable Cause. 2. After Significant Incident or Accident. 3. Following Drug and Alcohol Abuse Treatment or Disclosure. 4. Random for ALCOHOL safety sensitive. 8 4

5 Leading Cases Entrop (2000: OCA): Fallout The policy also said: Pre-employment and random alcohol and drug testing acceptable for commercial bus operators and truck drivers provided employees who are drug dependent are accommodated. Employers may be able to justify random and preemployment testing for other safety-sensitive positions provided they establish testing is a BFOR. 9 The way we were. Leading Cases 10 5

6 Irving (2013: SCC) 11 Irving (SCC: 2013) At arbitration, and before each court in the appeal process, issue was whether an employer is required to establish reasonable cause before it can adopt a random alcohol testing policy in an inherently dangerous unionized workplace. The Supreme Court of Canada used a balancing of interests approach noting that the arbitral jurisprudence to date had only accepted random alcohol testing in cases where there had been a problem with substance abuse in the workplace and where the employer had exhausted alternative means for dealing with the problem. 12 6

7 Irving (2013: SCC) SCC noted that the arbitration board had found: The evidence did not disclose a significant problem with workplace alcohol use, and there was therefore a low risk of safety concerns due to alcohol-related impairment on the job; The lack of positive test results in almost two years of random testing could indicate a successful deterrent or a lack of a problem in the workplace; and Breathalyser testing significant impacts employee privacy. 13 Irving (2013: SCC) Majority of the SCC agreed with the arbitration board that random alcohol testing was an unreasonable exercise of management rights because the employer had not demonstrated the requisite problems with dangerousness or increased safety concerns, such as workplace alcohol use, to justify random testing. 14 7

8 Irving (2013: SCC) New Framework for Testing 1. Reasonable cause permissible if reasonable cause to believe that the employee is impaired while working. 2. Post incident permissible if employee is involved in a significant workplace accident, incident or near-miss. 3. Post treatment permissible if employee returning to work after treatment for substance abuse. May be random or unannounced, and administered on terms negotiated with union. 15 Irving (2013) New Framework 4. Random testing dangerousness of workplace is not automatic justification to unilaterally impose random testing. Random testing may be permissible when: a) Testing program negotiated with the union. b) There is evidence of enhanced safety risks (general problem with substance abuse). c) Employer can establish it tried less intrusive measures to address the issue. d) Testing is a proportionate response in light of legitimate safety concerns and employee privacy interests. 16 8

9 Where we are now. Leading Cases 17 What you need to know Employers operating in a dangerous unionized workplace would be best served to negotiate testing policies with their union. When this is not possible, carefully document: all incidents of alcohol use in the workplace. all workplace accidents and near-misses. any circumstances demonstrating increased safety concerns in light of employee privacy interests. 18 9

10 Questions 19 THE END These materials are intended to provide brief informational summaries only of legal developments and topics of general interest and do not constitute legal advice or create a solicitor-client relationship. The materials should not be relied upon as a substitute for consultation with a lawyer with respect to the reader s specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to these materials or their application to you, you are encouraged to consult a member of our Firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments