Random Drug Testing in the Workplace

Beginning on October 17, 2018, Canadians will be permitted to freely obtain and use cannabis. In order for employers to adopt a random testing policy, they will have to show that there are enhanced safety risks in the particular workplace.

All Canadian citizens returning to the country — their country — may be selected for a search of their personal belongings. That highly intrusive search is carried out in full view of the other travellers present. Most of the time, border authorities conduct searches in order to determine whether the traveller is bringing back goods from abroad that exceed the duty-free allowance.

We can agree that this treatment is intrusive at the very least. Nonetheless, it is common practice.

Also in Canada, however, users of a service, co-workers or even third parties can have no assurance that a worker who performs a service for them, who works in their environment or who does something—or fails to do something—is not in a condition that could endanger their lives while under the influence of cannabis (and the same applies to alcohol).

Why?

That is what the Supreme Court (in a six to three decision) held in 2013 in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving Paper"). The resulting rule can be succinctly summarized as follows:

In order to adopt a random testing policy, an employer must provide evidence of enhanced safety risks in the particular workplace. For example, the presence of a dangerous workplace in which there is a general problem of alcoholism or drug addiction could make adopting such a policy permissible.

In Irving Paper, in spite of the fact that there was a dangerous workplace, the highest court in the land concluded, by majority opinion, that the occurrence of eight alcohol-related incidents over a 15-year period was not sufficient to show the presence of a general alcohol use problem. The random testing policy was therefore held to be contrary to the right to privacy.

The Supreme Court justified applying that rule by the fact that grievance arbitrators—meaning in cases limited to unionized workplaces—had always decided that way. It was noted that if legislatures disagree, they should take action.

Times have changed. We are living in the era of legalized cannabis. Beginning on October 17, 2018, Canadians will be permitted to freely obtain and use cannabis. It would therefore be easy, for example, to include some in a snack brought to work. Although that was possible even when cannabis use was criminalized, we must nonetheless acknowledge that lifting this constraint eliminates an obstacle. The damper represented by the fact that it was a crime no longer exists.

This major change in the treatment of cannabis calls for a re-examination of the received truths of the past, and even the recent past. The rule in Irving Paper was developed for a unionized workplace in a context in which the only parties to the proceeding were the union and the employer. Moreover, the decision was made by an arbitrator whose sole function was to resolve the dispute between those parties. More specifically, his role was limited to deciding how the collective agreement was to be interpreted or determining whether that agreement had been violated.

A member of the public who could be injured or killed by an intoxicated worker cannot demand to be heard by the adjudicator. The same is generally true of a co-worker or a user of a service.

The time has come to examine the question with a view to the important interests of the members of the public who are not covered by the collective agreement being considered by a particular arbitrator to whom the specific content of a grievance is submitted.

Legislatures have an important responsibility: protecting the health and safety of the public, and making it their concern to see that the right to life is not overshadowed by the right to privacy of an employee or employees affected by a grievance. That assertion is based on the fact that methods and protocols for protecting the dignity and privacy of an employee affected by a test already exist and can therefore be put in place.

Parliament has enacted Bill C-46, which allows drivers to be subjected to random testing, even if there are no suspicious circumstances involved in the driving of a vehicle.

The time has come for this question to be put on the agenda.