Key provisions of drug and alcohol policy struck down by Human Rights adjudicator

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Ontario employers searching for ways to control perceived substance abuse problems in the workplace will have to consider the effect of a recent ruling by a Board of Inquiry under the Ontario Human Rights Code. In Entrop v. Imperial Oil Ltd., released on September 12, 1996, Board Chair Constance Backhouse has invalidated important provisions of the employer’s Alcohol and Drug Policy.

Martin Entrop was a senior operator on the control board at Imperial Oil’s Sarnia refinery, a position designated as safety-sensitive. Although Entrop had a past history of alcohol abuse, he had maintained total abstinence since 1984. In 1992, Imperial Oil implemented its Alcohol and Drug Policy and, in accordance with this Policy, removed Entrop from his position and re-assigned him to a less desirable position with no loss in pay. Entrop was eventually reinstated with conditions, but filed a complaint with the Human Rights Commission, alleging discrimination on the basis of handicap.

Because of the complexity of the issues involved, the hearing was divided into three phases. In the first and second phases, the Board ruled that Entrop had suffered discrimination under the Policy’s provisions, and that Imperial Oil had engaged in reprisals against him after he filed his complaint. In the third phase, the Board examined the Policy as it related to drug use, and considered the legality of the Policy’s drug and alcohol testing provisions.

THE POLICY

Imperial Oil’s Policy calls for pre-employment drug testing, with every offer of employment being conditional on a negative test for specified drugs. Employees are subject to mandatory drug and alcohol testing after significant work accidents, incidents or near misses, or if there is reasonable cause to suspect alcohol or drug use. Any employee who tests positive is subject to discipline.

Individuals in positions designated as safety sensitive are subject to additional obligations. These include bi-annual medical examinations for drug or alcohol abuse, testing as part of a certification and review process, and then random testing. They must also disclose to management any current or previous problems with alcohol or drug abuse, at which point they are removed from their positions and reassigned. Reinstatement to their original positions is possible, but only after a minimum seven-year waiting period, and subject to stringent conditions. These conditions include an extensive array of post-reinstatement controls, such as continued abstinence, frequent and unannounced testing, and a requirement to report to the company any changes in circumstances which might increase the risk of a relapse. For employees in safety sensitive positions, a single positive test in violation of the Policy results in dismissal.

POLICY DISCRIMINATES AGAINST HANDICAPPED EMPLOYEES

The Board ruled that a drug abuse problem, like alcoholism, is a form of handicap under the Human Rights Code, and that Imperial Oil’s Policy discriminated against employees with substance abuse problems. Specifically, the Board pointed to the provisions requiring self-disclosure, reassignment and the rigorous reinstatement process as being discriminatory. The various testing provisions were also held to be unlawful, as they assisted the company in identifying employees to be discharged or disciplined due to their handicap.

IS THE POLICY A LEGITIMATE MEANS OF CONTROLLING IMPAIRMENT?

Section 17 of the Human Rights Code provides a defence to an allegation of discrimination on the basis of handicap, where the person suffering the discrimination is incapable of performing the essential duties of the job. As it had previously found in the case of alcohol-related impairment, the Board ruled that freedom from drug-related impairment was a genuine requirement of the job for employees in safety-sensitive positions:
“This Board agrees that an employer has the right to ensure that its business operations are conducted safely, and a corresponding right to assess whether employees are incapable of performing their essential duties. For safety-sensitive jobs, Imperial Oil also has the right to assess whether its employees are free from impairment on the job, whether caused by alcohol or drug abuse or otherwise.”
But the question remaining was whether the Policy applied only to impaired employees, or ensnared others who were capable of performing their jobs.

DISCLOSURE, REASSIGNMENT AND REINSTATEMENT PROVISIONS TOO BROAD

In its earlier decision, the Board had ruled that the disclosure, reassignment and reinstatement provisions, as they related to alcoholism, were not justified as a means of determining incapacity to perform the job. It again struck down these provisions as they applied to drug abuse. The Board found the disclosure requirement overly broad, applying to employees who had had a substance abuse problem in the past but were completely rehabilitated. Nor were the reassignment and reinstatement provisions based on any form of individual assessment. The minimum seven-year period before reinstatement was held to be unduly long for some individuals. The mandatory conditions and undertakings were also found to be too harsh for some employees.

DRUG TESTING AND ALCOHOL TESTING PROVISIONS FOUND WANTING

The Board then considered whether drug and alcohol testing could accurately determine employees’ incapacity to perform their jobs. Surveying the evidence on the relationship between testing and incapacity, the Board pointed to several problems including, in the case of drug testing, the lack of a definitive correlation between a positive drug test and impairment and, in the case of both drug and alcohol testing, the difficulty in measuring the deterrent effect of testing programs on impairment in the workplace.

The Board held that, while Imperial Oil had the right to assess whether employees in safety-sensitive jobs were free from impairment, the evidence was unequivocal that drug testing could not establish impairment. Imperial Oil had conceded as much, but had argued that a negative test proved with certainty that a person was not under the influence of drugs. The fact that the technology was imperfect, Imperial Oil asserted, was the very reason to have a strict regime of testing, in order to assure a drug-free workplace. The Board rejected this approach, holding that Imperial Oil had not met its burden to prove that testing was clearly linked to “incapability”.

“The difficulty with this point of view … is that the law places the onus of proof upon [the employer] to demonstrate with clear and convincing evidence that the people it disciplines, discharges or refuses to hire on account of a positive urinalysis test are “incapable” of doing the job. The lack of accurate technology available to accomplish this through current testing mechanisms is something which rebounds to the detriment of [the employer], not the [Human Rights Commission].”
The company had also argued that despite this absence of an empirical link between drug testing and impairment, testing was justified because a positive result created a “reasonable apprehension” of current or future impairment. An expert testifying on behalf of Imperial Oil had stated that concentrating on the pharmacological effects of illicit drugs was too narrow a focus: drug abuse should be seen as a sociopathy, an “infectious disorder” that could spread rapidly in the workplace. The Board responded that this approach is prohibited by the Human Rights Code:
“These are the types of stereotypical assumptions that are precisely the kind that human rights legislation is intended to prohibit. …It is entirely improper for an employer to fashion work rules which discriminate against such individuals on the basis of unpredictable risks.”
Imperial Oil could therefore not avail itself of the “incapability” defence, because it had not established that a positive drug test could prove that an individual was incapable of performing the essential components of the job. For this reason, the Board struck down the provisions regarding random and pre-employment drug testing. It held that drug testing “for cause”, “post-incident”, “upon certification for safety-sensitive positions”, and “post-reinstatement” may be permissible, but only if the employer can establish that the testing is necessary as one part of a wider drug abuse assessment process.

Because the Human Rights Commission had conceded that breathalyser tests did indicate impairment due to alcohol, and that breathalyser testing “for cause” and “post-incident” was permissible, the Board did not rule on these issues. However, it invalidated random alcohol testing because Imperial Oil had not established that it was reasonably necessary to deter alcohol impairment on the job. Alcohol testing in the context of certification for safety-sensitive positions, or “post-reinstatement” may be permissible, the Board held, but only if the employer can show that testing was necessary as one facet of a larger alcohol abuse assessment process.

IN OUR VIEW

Employers should review any policies they have on controlling workplace substance abuse in light of this decision. The fact that, in this case, freedom from impairment was an essential condition of performing a job designated as safety-sensitive was not sufficient to safeguard the policy from being challenged. To meet the “incapability” defence, such policies should be focused as much as possible on the assessment of substance abuse itself, and not on controlling employees who are believed to present a greater risk of being substance abusers. Evaluation of individual circumstances is also important. In this case, Imperial Oil’s Policy was seen to impose unacceptably high burdens on some employees without regard to their actual individual situations.

Imperial Oil is appealing the decision to the Divisional Court. (For more recent developments, see “Court dismisses Imperial Oil appeal “ and “Court of Appeal overrules human rights board on legality of random breathalyzer testing” on our Publications page; see also “Mandatory drug testing policy ruled discriminatory by Federal Court of Appeal” on our Publications page.)

For more information on this subject, please contact Colleen Dunlop (613) 563-7660, Extension 222.