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Feds would back Ontario court’s drug test ruling

TORONTO, Ont. - The head of the Canadian Human Rights Commission says he would side with a recent Ontario Court of Appeal ruling that questions the legality of employee drug testing, possibly setting ...

TORONTO, Ont. – The head of the Canadian Human Rights Commission says he would side with a recent Ontario Court of Appeal ruling that questions the legality of employee drug testing, possibly setting the stage for a decision affecting U.S.-bound truckers.

The federal commission’s views on employee drug testing are “very much in line” with the Ontario decision, secretary-general John Hucker told Truck News.

The Ontario Court of Appeal has become one of the nation’s first courts to openly question the legality and accuracy of drug testing policies in the workplace. While no trucking cases have reached the federal level – where cases involving U.S.-bound truckers would have to be heard – they do account for 21 of the 60 drug testing cases currently before the Canadian Human Rights Commission.

In a July decision, the Ontario Court of Appeal upheld an Ontario Human Rights Commission (OHRC) ruling in a 1992 case involving an employee of Imperial Oil who was compelled to reveal a past drinking problem under company policy. The employee, Martin Entrop of Simcoe, Ont., was subsequently removed from his position in a “safety sensitive” area, despite the fact he had been alcohol-free for several years. Entrop then filed a complaint with the OHRC.

The commission upheld Entrop’s complaint, ruling that the company’s testing policy violated the Ontario Human Rights Code because it penalized the employee for alcohol dependence, which is considered a handicap under the Code. After the OHRC ruling was upheld by the Ontario Divisional Court, Imperial Oil took the case to the Court of Appeal.

While the Court of Appeal was only asked to rule on the Entrop case itself, the three judges took the opportunity to comment on employee drug and alcohol testing in general. Essentially, the Court said that it is acceptable for employers to perform Breathalyzer tests on employees to ensure a safe workplace, but only if they can demonstrate that the test is justified. However, the Court went on to say that while drug tests may be acceptable for employees in positions where safety is of paramount concern, the tests themselves only show the presence of a given substance, and reveal nothing about the level of impairment or the employee’s ability to perform the job.

Although the ruling by the Court of Appeal does not automatically render pre-employment and random employee drug tests illegal, said Pearl Eliadis, director of policy and education for the OHRC, the Court is clearly sending a message to employers. “Technically, it’s not a binding ruling, but the views of the Court are clearly expressed. I think it would behoove employers to pay attention.”

Within the trucking industry, reaction to the ruling has been subdued. “Nothing has changed at this point,” said Betsy Sharples, labor issues manager for the Ontario Trucking Association. “It would be alarmist to say it (the ruling) would change anything in the trucking industry.”

At first blush, the Court of Appeal ruling might appear to create a Catch-22 scenario for trucking companies that haul into the U.S. Under U.S. federal regulations, truckers must submit to pre-employment, random, and for-cause drug tests following a recordable accident. Furthermore, Canadian carriers are required by the U.S. Department of Transportation to set up random testing programs for their drivers and to keep meticulous records.

“The Ontario Court of Appeal’s ruling only affects companies operating under provincial jurisdiction,” Eliadis says. “So if the bulk of a trucking company’s business is interprovincial or international, the ruling is irrelevant. Companies that operate interprovincially or internationally fall under the jurisdiction of the federal government and the Canadian Human Rights Commission (CHRC).”

However, Hucker, secretary general of the Canadian Human Rights Commission, shows how the federal commission’s views echo those of the Ontario Court of Appeal in terms of drug tests. He points to a recent case involving the Toronto Dominion Bank in which the CHRC ruled the bank’s pre-employment drug testing policy violated the Canadian Human Rights Code. That ruling was upheld by the Federal Court of Appeal.

“The TD case is the same idea,” Hucker says. “We have argued that we are willing to entertain the idea of pre-employment and random drug testing, but only under certain circumstances. In general we don’t accept it, but one has to be realistic. We are open to the argument that there are cases where it is legitimately necessary.”

Hucker says that although the CHRC has dealt with drug testing cases involving trucking companies, none have progressed all the way to federal court.

“We have had complaints from drivers who have been laid off (following a positive drug test), and we have upheld those complaints,” he says. “But none of those cases ever advanced to a formal hearing, so you wouldn’t have heard of them.

“Our policy is to ask the trucking company if there is another way of dealing with the problem. Drug testing may be a legitimate requirement for that company to conduct business, but they have to treat the employee properly if they test positive. We have said that the employer must accommodate that employee if they can do so. If they have domestic routes, they have to find a way to accommodate that employee. The Supreme Court of Canada has said much the same thing.”

Hucker says the CHRC is currently dealing with 60 cases that deal with employee drug testing, 21 of which involve the trucking industry. He expects most of those cases to be settled along the way, but it is possible that a case could advance to a hearing before a federal tribunal within the next year to 18 months.

If that happens, says the OTA’s Sharples, the trucking industry will be paying attention.

“We won’t know how any of this affects the trucking industry until a case comes along to test it,” she says. n

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