Court of Appeal overrules human rights board on legality of random breathalyzer testing

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In 1996, a Board of Inquiry under the Ontario Human Rights Code invalidated some key provisions in a major employer’s Alcohol and Drug Policy. In Entrop v. Imperial Oil Ltd. (see “Key provisions of drug and alcohol policy struck down by Human Rights adjudicator” and “Court dismisses Imperial Oil appeal” on our Publications page), Martin Entrop, an employee with a history of alcohol abuse who worked in a safety-sensitive position, complained that he had suffered discrimination on the basis of handicap.

After determining that Entrop had been discriminated against, the Board went on to consider, among other issues, the legality of the Policy’s drug and alcohol testing provisions. The Board held that the provisions for random alcohol testing breached the Code because the employer had failed to establish that the testing was reasonably necessary to deter alcohol impairment on the job. It expressed the view that the testing was of limited utility and that other less drastic means were available to deter alcohol impairment.

In a decision released on July 21, 2000, the Ontario Court of Appeal set aside this conclusion, calling the evidence for it weak, and the reasoning unpersuasive. It held that the random alcohol testing was reasonably necessary to the purpose of minimizing the risk of impaired performance due to substance abuse. Expert evidence showed that breathalyser testing did reliably measure impairment, the Court noted, and the standard chosen by Imperial, .04 per cent blood alcohol concentration, was, also on the evidence, a reasonable standard for establishing impairment.

However, the Court noted, random alcohol testing, while reasonably necessary, also had to provide for the accommodation of those testing positive. The Policy called for the dismissal of an employee following one positive test, which the Court held was inconsistent with the employer’s duty to accommodate. Therefore, the Court ruled that, in order to meet its accommodation obligations, the employer would have to tailor the sanction for an employee who tests positive to that employee’s circumstances. (See also “Federal human rights body issues alcohol and drug testing policy” on our What’s New page.)