DRUG TESTING in the workplace Kelsey M. Yakimoski, Fillmore Riley LLP LEGAL CORNER With the legalization of cannabis, there has been an increasing concern from employers regarding the potential implications of drug use and impairment in the workplace. This concern is applicable to municipalities, as they must comply with the applicable laws governing employment. As employers have an overall duty to ensure health and safety in the workplace, it follows that they have the right to establish and enforce policies prohibiting the use of alcohol and drugs in the workplace. However, an employer’s power to monitor and enforce said policies is not unlimited. While drug and alcohol testing by an employer seems like a good way to monitor impairment of employees, it is only permitted in limited circumstances. This is due to the fact that employees have a right to privacy. Employers are expected to balance that right with their own right and concerns over workplace health and safety. Pre-employment and random alcohol and drug testing by an employer are not usually permitted, whereas testing of specific employees under the correct set of circumstances is. In a workplace classified as dangerous, employers are entitled to test individual employees who occupy safety sensitive positions if there is reasonable cause to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident (or near miss), or where the employee is returning to work after treatment for substance abuse. For example, in UNIFOR Local 1075 v. Bombardier Transportation (Thunder Bay Plant), the employer of an industrial plant was justified in testing an employee for marijuana impairment after a supervisor smelled marijuana and saw the employee exhale smoke. The leading case with respect to workplace alcohol and drug testing is Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd. (Irving). In Irving, the union challenged the employer’s mandatory random alcohol testing policy that was unilaterally implemented. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. A positive test for alcohol attracted significant disciplinary action, including dismissal. In considering the policy, the Supreme Court of Canada established that in order for random testing to be allowed in a dangerous workplace, there must be evidence of a general workplace problem of substance abuse and it must be a proportionate response that balances the employer’s safety concerns with the employee’s privacy interests. The Supreme Court of Canada upheld the arbitrations board’s decision to strike down the policy, concluding that the employer’s random testing in this case was unjustified as there was no general problem of substance abuse in the workplace. 60 Municipal LEADER | Spring 2019