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Unreasonable random drug testing, even in dangerous jobs, rejected by Ontario court

An Ontario judge has ruled that employees who do dangerous work, even firefighters, cannot be forced to take random drug tests without cause or consent. The decision came on August 17, 2022, through an appeal by firefighters at the Ottawa International Airport.

A standard of reasonableness must be applied to such testing, judges Swinton, Ramsay and Kurke wrote in their decision. They did not believe the standard of reasonableness had been met in this case.

“The Airport Authority in this case provided no evidence of a problem of drug use among employees at the Ottawa airport,” wrote Justice Katherine Swinton of the Ontario Divisional Court. “Indeed, it refused the Firefighters Association’s request for information about the prevalence of drug or alcohol use in the workplace.”

The Airport Authority in 2018 introduced an Alcohol And Drug Policy following Parliament’s legalization of marijuana.

The Policy stated: “‘Unannounced random testing for the safety sensitive positions will be carried out at a 50 per cent selection rate for drugs and 10 per cent selection rate for alcohol per year.” Workers in safety sensitive positions like firefighting who refused a random test were threatened with a variety of disciplinary measures including mandatory counselling or firing. The Ottawa Airport Professional Aviation Firefighters Association challenged the order as a breach of privacy.

According to the Background Facts contained within the decision document, the 2018 Airport Authority policy “provides for drug and alcohol testing in a number of circumstances: pre-employment/assignment situations, where there is reasonable cause to believe an employee is impaired at the workplace, after an accident or incident, in follow-up post-treatment monitoring for a drug or alcohol-related problem, and unannounced random testing of workers in safety sensitive positions.”

The policy went on to state, “Unannounced random testing, for the safety sensitive positions, will be carried out at a fifty percent (50%) selection rate for drugs and ten percent (10%) selection rate for alcohol, per year. Selection will be conducted, at arm’s length, by the Authority’s qualified service provider, using a federally approved computerized process.

“Compliance with the Policy including acceptance of testing, is a condition of continued employment with the Authority. Refusal to be tested will be viewed as a failure to comply with the Policy. Such a refusal will result in the employee being referred to an DSAP for assessment and, depending on the facts of each case (including the nature of the breach, the existence of prior violations, the seriousness of the breach, and the employee’s own efforts to correct the situation), could lead to a treatment recommendation, a requirement to attend educational sessions, or to a variety of disciplinary measures by the Authority up to and including dismissal for cause and/or serious reason.

“Examples of refusal include:

  1. failing to provide an adequate urine specimen for a drug test without a valid medical explanation;
  2. ii. failing to provide adequate saliva, breath or urine for an alcohol test without a valid medical explanation;
  3. iii. failing to submit to a test when requested to do so; or
  4. iv. engaging in any conduct which obstructs the testing process.”

However, “The dangerous nature of the workplace has not alone justified the imposition of random alcohol and drug testing,” said the Court in its decision. “Arbitrators have required evidence of an elevated safety risk arising from alcohol or drug use in the workplace.”

“An employer may unilaterally impose a rule on employees if they face disciplinary consequences as a result of non-compliance only if the rule is reasonable in the circumstances,” wrote Justice Swinton. There was no evidence Ottawa firefighters were marijuana users, she added.

“There was no evidence of an elevated safety risk because of a problem of employee drug use at the Ottawa airport nor was there any real analysis of the significant privacy interests of employees recognized by the Supreme Court,” wrote Justice Swinton.

The decision of the three justices concludes, “Deference is owed to arbitrators when they are interpreting a collective agreement. However, in the present case, there are serious flaws in the arbitrator’s analysis that cumulatively render his decision unreasonable.

“The Authority has pointed to no case in which an arbitrator has upheld a mandatory random drug testing policy in Canada where an employee can be disciplined for non-compliance without some evidence of a workplace drug problem.

“The arbitrator gave no justification for departing from the established arbitral approach to random drug testing. Moreover, the arbitrator had no evidence of a drug use problem among workers at the Ottawa airport. He unreasonably relied on evidence in the TTC case to support his finding that the Policy was reasonable if oral testing replaced urinalysis.

“However, he had no evidence particular to the workplace with which he was dealing, and he made no order preventing the use of urinalysis. Finally, he never engaged with the very important employee privacy interests affected by mandatory testing, as the jurisprudence requires.

“For these reasons, I conclude that the award of the arbitrator is unreasonable.”