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Finding the right approach

|Written By Robert Todd
Finding the right approach

When Irving Pulp & Paper Ltd. rolled out a new measure to help ensure workplace safety at its kraft pulp mill in Saint John, N.B., in February 2006, the company was aware of the potentially catastrophic impact a serious accident at the heavy industrial facility could have on employees, the surrounding community, and the environment. So Irving decided to roll out its “policy on alcohol and other drug use,” which would see employees in safety-sensitive positions subjected to random alcohol testing using a calibrated breathalyzer.

The policy was poised to add a new tier of workplace safety, and seemed airtight: it had already been backed by an arbitrator in 2002, a decision that came after a group of 14 locals from the Communications, Energy and Paperworkers Union of Canada combined forces against it. Moreover, the company had announced plans to adopt the strategy months before implementing it, and offered education and awareness sessions to all employees.

Yet workers were not pleased. Local union president Mike MacMullin said the policy trampled on workers’ rights. He told CBC News employees subjected to testing were “proven guilty until they could prove they were innocent.” The union filed a grievance just two months after the policy was implemented, and in November 2009, an arbitration board backed its position, saying Irving went too far by imposing random testing. The company contested that ruling in June before Court of Queen’s Bench Justice William Grant, who reserved his decision.

Once released, Grant’s decision will add another layer of complexity to the controversial, and at times confusing, Canadian approach to alcohol and drug testing in the workplace. Without specific legislation governing such policies — and the Supreme Court of Canada reluctant to weigh in on the debate — experts say only a minority of workplaces have adopted potentially life-saving practices. Yet the impact of substance abuse on the workplace remains unmistakable. In a 2002 report, the Canadian Centre on Substance Abuse found that tobacco, alcohol, and illegal drugs cost the Canadian economy over $39 billion. The study reported that 13.6 per cent of the population drink alcohol excessively, and 14 per cent use marijuana. As the Canadian Centre for Occupational Health and Safety notes, substance abuse can increase the risk for accidents by impairing reflexes, concentration, and alertness on the job.

There are ways, however, for in-house counsel to steer their companies in the right direction when it comes to managing this threat. A good first step is to wade into the maze of arbitration decisions, human rights tribunal rulings, and court cases that have shaped the current approach to A&D testing in Canada.

One key case came in 2000 in the Ontario Court of Appeal’s Entrop v. Imperial Oil Ltd. The appeal court overturned an Ontario Human Rights Commission board of inquiry decision that found Imperial Oil’s random A&D testing policy to be discriminatory, effectively opening up testing in the workplace. In a relief to many employers, the panel ruled that breathalyzer testing effectively determines impairment and does not contravene privacy rights, and gave the green light to testing to determine current impairment. But the court also said employers must take a measured approach to positive test results. It encouraged a case-by-case approach and rejected immediate termination following a single positive test.

Yet the court did not go as far as many employers may have hoped, ruling against random testing, saying it fails to demonstrate actual or future impairment. The court also drew a line in the sand in terms of drug testing, saying the urinalysis technique fails to show impairment at the time of testing.

The courts have also been asked to weigh into situations where an employee is tested as a condition of employment. In 2007’s Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., the Alberta Court of Appeal upheld the company’s right to rescind an offer of employment to an employee who was hired to work a safety-sensitive job on a client’s work site. The employee had tested positive for marijuana use, but because he was found to be only a recreational user of the drug, he was deemed not to suffer from a disability, precluding the consideration of human rights abuses by the employer. The court ruled the policy did not assume the employee to be an addict, but “[r]ather, it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace.”

Several other decisions are also important to note. The Canadian Human Rights Tribunal, in Milazzo v. Autocar Connaisseur Inc. in 2003, suggested employers should get more leeway if random testing is conducted on employees in safety-sensitive positions. The Alberta Court of Appeal’s 2005 decision Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement suggests employers need to establish a strong purpose for testing. In that case, a policy aimed at maintaining an employer’s image was deemed unreasonable.

Employers have also been instructed on whether testing is permissible after a dangerous incident in the workplace and reasonable cause exists to suspect an employee is impaired. In 2000’s Canadian National Railway Co. v. CAW-Canada, an arbitrator backed testing of employees in safety-sensitive positions under those very circumstances.

Arbitrator Thomas Joliffe clarified those conditions in a 2008 case involving Pipefitters Local 663 and the Mechanical Contractors Association of Sarnia, which implemented testing policies on behalf of its oil-company clients. Joliffe offered four rules that may trigger a reasonable cause or post-incident test:

• on-site behavioural, physical, or verbal demeanour suggesting impairment — actual supportable observations;

• an incident of “such magnitude” — a personal injury or meaningful occurrence;

• circumstances and observations during an investigation which lead to a legitimate concern that impairment was a factor; or

• a significant accident or incident which needs some investigation resulting in a realistic suspicion that impairment played a role.

Of course most employers would prefer to take a proactive approach that nips accidents in the bud before a post-incident response is necessary. Yet Barb Butler, a Toronto-based consultant to organizations implementing A&D testing policies, says she is astonished at how few organizations have done so, especially at companies with workers engaged in potentially dangerous tasks. “Even if they’re not considered to be in heavy industry or the resource industry or transportation, that doesn’t mean that in a retail environment people should be showing up unfit and then working with packaging, working with equipment behind the scenes,” says Butler. “You can’t turn a blind eye to the issue; it’s out there. The key is to manage it appropriately for your business.”

Butler says fears of employee backlash might hold many companies back. But in most cases, employees are aware of substance-abuse issues in their workplace and many are surprised by a lack of guidance on the prohibition of alcohol and drug use while on the job. “They expect management to address it,” says Butler.

The worker response may be different in a unionized setting, however. A position paper posted on the Communications, Energy and Paperworkers Union of Canada web site shows the organization’s strong opposition to drug testing. “Mandatory workplace drug testing is an attempt to implement a simple solution to a very complex problem,” the document states. “It will not work. The push to test has a lot to do with which groups in society are perceived to wield power, and the particular moral values and prejudices that these groups hold.”

Yet the growing list of court and arbitration decisions may help in-house counsel create a strong testing policy that will withstand complaints. At the same time, workplace safety is a growing priority for organized labour. “It’s refreshing to see unions taking the position that they’re supportive of a safe work environment,” says Mike McCreary, a union-side labour lawyer at Toronto’s Watson Jacobs McCreary LLP. “Perhaps 50 years ago or 40 years ago employers would bump up against some resistance by unions in taking steps to make a workplace more safe. Not the case nowadays.”

That’s not to say unions are prepared to sign off on any means of accomplishing safety, especially when it comes to A&D testing. This point hits on what McCreary considers the primary tension between the two sides on this issue. Unions believe “softer” methods of detecting impairment on the job are the best solution. They support the use of observational techniques by managers to detect workers who may be drunk or high while at work. Under this approach, an A&D test — and counselling — may follow a discussion with an employee who appears to be impaired, says McCreary.

But he says employers seem to want more certainty in maintaining an alcohol-and-drug-free work environment. “Employers want to be able to ensure that their workforce is unimpaired, full stop,” says McCreary. “Some employers may say, ‘Well, if we’ve got a problem, we want to give everybody a breathalyzer, to give certainty to the issue.’ Unions view that as intrusive.”

It’s unlikely that workers and employers will find a compromise any time soon. That means in-house counsel may be forced to roll the dice and create an A&D policy that could well end up on an arbitrator’s desk or before a court or human rights tribunal. While that is nothing to look forward to, experts argue it’s far better than spending millions on a settlement after a workplace disaster or dealing with the fallout of a severely injured or deceased employee.

For proof of the potential fallout from an impaired worker, one needs to look no further than the 1989 Exxon Valdez oil spill. A drunken captain played a role in that disaster, which led to a $500-million bill in civil liabilities alone. That incident helped push U.S. employers to enforce more A&D testing policies, and also prompted Exxon to take a firmer approach to workplace safety: the company abandoned an oilfield in the Gulf of Mexico due to dangerous conditions in 2006, even after it had spent $185 million on the project.

At the end of the day, courts will look fondly on any measures taken to prevent a disaster, says Richard Charney, chairman of Ogilvy Renault LLP’s employment and labour law group in Toronto. “From a pure corporate fiduciary perspective, it does show some measure of due diligence. And by the way, if you hire a decent lawyer, go to arbitration or court, and fight it and lose, I suppose you’ve still done your due diligence. Let the potential harm rest on the shoulders of the arbitrator or the judge.” At the same time, Andy Robertson, chairman of Macleod Dixon LLP’s employment practice group in Calgary, paraphrases one client’s view on an A&D testing policy that may face scrutiny: “I’d rather talk to the Human Rights Commission than the parents of my dead employees.”

At the moment, it is impossible for in-house counsel to have complete certainty when creating a testing policy, and none is expected until the Supreme Court of Canada weights in. Many were disappointed when Canada’s top court took a pass at hearing an appeal of Kellogg Brown. “So far, the Supreme Court doesn’t want to talk about it,” says Charney. “I think there is going to be a case that’s going to go there, and hopefully the court will clarify the rules. But in the meantime, they seem to want this work to be done in the lower levels.”

That must be unsettling for lawyers like John Martelli, senior legal counsel at Bruce Power in Tiverton, Ont. His company — which operates nuclear reactors on 2,300 acres about 250 kilometres north of Toronto — continues to monitor the law with an eye to the possible creation of a testing policy in the future. Its current approach to on-the-job substance abuse comes in the form of a “fit for duty” checklist, which managers use to question employees who they suspect are impaired. “We’re thinking about it and following the law as it progresses throughout the country, in terms of whether or not we need to beef up our policies,” says Martelli, who points to the wide use of testing by companies in the U.S. nuclear industry. He says the union presence in Canada and arbitration decisions have kept Bruce Power from doing the same. The company isn’t necessarily waiting with bated breath for a Supreme Court decision on the topic, but it would certainly help, says Martelli. “It is an issue where there are divergent views depending on who you ask. Certainly [an SCC ruling] would assist us; I think it would assist a number of companies.”

Charney acknowledges the concerns of in-house counsel who are jittery about opposing decisions across the country. He believes Ontario arbitrators, for example, have been less amenable to tougher testing policies compared to their counterparts in Alberta. “That may be a result of just different political cultures,” he speculates. “Alberta is a little more conservative, but also I think in Alberta the oil-and-gas industry, where there are these camps of workers at the tarsands in Fort McMurray, where there’s a real need to deal with high-risk work, there’s a real need for [A&D testing], compared to some other places, more pastoral places.”

Yet Charney hopes in-house counsel avoid a black-or-white approach to A&D testing. Too many employers have a knee-jerk reaction to it, either believing “you should test and fire, and the other camp that believes you can’t test at all,” he says. “The truth is somewhere in the middle, and employers should at least put their minds to whether they ought to take advantage of that.”

If a ruling from the country’s top court does not come, some believe changes to societal norms will allow companies to embrace wider use of random A&D testing. William Goss, a partner at Stewart McKelvey in Saint John who represents Irving, awaits a ruling in the case’s latest battle. He notes that opponents of random alcohol testing in the workplace point to Canada’s roadways for support. They say police need reasonable cause before ordering a driver to take a breathalyzer test and argue the same burden of proof should be placed on employers.

But that argument may soon fall to the wayside. The House of Commons justice committee last year studied drunk driving and recommended the use of random breath tests on roadways, an approach that has proved successful in Australia, New Zealand, and European Union countries. A study found the shift to random testing in the Australian state of Queensland reduced fatal crashes by 35 per cent between 1988 and 1992. A similar approach in Canada may well help cut down on the prevalence of drunk-driving deaths here, which amounted to 1,278 lives in 2006.

While Canadians have yet to experience that level of intrusion on their personal freedoms, either on the roadways or in the workplace, Goss believes most would embrace it for the greater good. “We’re becoming so intolerant of the devastation of alcohol abuse, whether it be on the highway or in the workplace, that we’re moving there.”