Testing, Testing, 1, 2, 3: An update on post-incident, reasonable cause, and random drug and alcohol testing

The legalization of recreational cannabis has brought new attention to the dangers of workplace impairment, and with it a greater interest in workplace drug and alcohol testing. This increased interest has resulted in significant (and sometimes conflicting) caselaw that attempts to balance the privacy rights of employees with the goal of reducing safety risks in the workplace.

In this session, seasoned counsel will review the latest developments in workplace drug and alcohol testing, addressing issues such as:

• Safety-sensitive positions: How have adjudicators and courts defined safety-sensitive positions? Why is such a finding significant? What methods of testing are available to screen for alcohol or drugs in the workplace? Does a positive test establish that a worker is currently impaired? Can an employer treat a refusal to submit to testing as being equivalent to a positive test?
• Reasonable cause: What must an employer demonstrate in order to justify reasonable cause testing? In circumstances where there are clear signs of impairment but the cause is not known, would it be reasonable to test for both drugs and alcohol? Does the smell of alcohol or cannabis alone provide reasonable cause, or are additional symptoms required? If a worker is exhibiting signs of impairment from alcohol (i.e. smelling of alcohol) can an employer validly administer a drug test as well?
• Post-incident: What criteria do adjudicators apply to determine whether post-incident testing is justified? Does there need to be evidence of impairment before such a test will be justified? Will the seriousness of the incident or severity of damage factor into this assessment? Does the employer need to conduct an investigation after the incident in order to justify testing? Is an employer required to provide the employee with an opportunity to explain how the incident occurred before requiring a test? Following the Supreme Court of Canada’s ruling in Elk Valley, how, if at all, will an employee’s post-incident disclosure of a substance use disorder impact on the analysis?
• Random screening: What conditions must an employer satisfy in order to implement a random drug or alcohol testing policy? What type of evidence is required to demonstrate a general problem with drugs, alcohol, and safety in the workplace? Does the evidence have to relate to the bargaining unit in particular or can it relate to the workplace in general? What evidence should unions bring forward to establish that random testing is not needed?
• Pre-employment: Does the balancing of interests approach set by the Supreme Court of Canada in Irving Pulp & Paper also apply to pre-employment testing? Is evidence of a substance abuse problem in the workplace required in order to justify pre-employment drug and alcohol testing of job candidates? Does the answer vary depending on jurisdiction?