TORONTO, Ont. – The Ontario Court of Appeal rendered a decision late last month that has broad implications for both Canadian workers and their employers, and creates some unique problems for individuals in the trucking industry.

In a unanimous decision, the three judges of Ontario’s highest court upheld a 1996 ruling by the Ontario Human Rights Commission which declared Imperial Oil Ltd.’s drug and alcohol testing policy illegal. Essentially, the Court of Appeal’s ruling makes it legal for companies to perform Breathalyzer tests on its employees in order to ensure safety in the workplace. However, the ruling also says demanding urine samples for drug testing is a violation of the Human Rights Code.

“In a nutshell,” says Pearl Eliadis, director of policy and education for the Ontario Human Rights Commission, “the what the Court said was, random testing is bad, and pre-employment testing is bad. Breathalyzers are only OK in specific circumstances where safety is a specific concern and the employer is not supervising the employee.”

Although the Court of Appeal ruled against Imperial Oil’s drug testing policy in this case, it pointed out that there are cases where mandatory employee alcohol and drug testing would be justified, such as for sensitive occupations such as train operators or pilots. In explaining the ruling, Mr. Justice John Laskin wrote that while a Breathalyzer is capable of measuring the level of impairment, urine tests simply verify the presence of a particular substance, and therefore cannot be used to gauge an employee’s ability to perform their job. In addition, a urine test can reveal an array of information about an employee that has nothing to do with their occupation, making it unnecessarily intrusive.

“I think the word to employers is, they really need to demonstrate that there is a rational basis for requesting a Breathalyzer test,” Eliadis explains. “As for manditory drug tests, forget it.”

The original Human Rights Commission ruling stemmed from a case brought in 1992 by Martin Entrop, an Imperial Oil employee from Simcoe, Ont. Under Imperial Oil’s drug and alcohol testing policy, Entrop was compelled to reveal that he had had a problem with alcohol in the early 1980s. In spite of the fact Entrop had been alcohol-free for some seven years since overcoming his problem, Imperial Oil still moved him from his job in a “safety-sensitive” area to another job within its refinery. Entrop complained to the Human Rights Commission arguing that the company’s testing policy

The Human Rights Commission upheld Entrop’s complaint, ruling that Imperial Oil’s testing policy was in breech of the Ontario Human Rights Code. Under the code, dependence on drugs or alcohol is considered a “handicap”. Therefore, individuals suffering such a handicap cannot be discriminated against because of it. The commission also awarded Entrop more than $21,000 in damages for “mental anguish”. After the Ontario Divisional Court upheld the commission’s ruling, Imperial Oil decided to take the case to the Court of Appeal.

The ruling by the Court of Appeal creates a unique situation for many employers in the trucking industry. In the United States, where human rights codes are far less stringent, employee drug and alcohol testing is commonplace. Current U.S. regulations governing the operation of heavy-duty trucks demand that all Canadian drivers running south of the border must submit to drug and alcohol testing.

“U.S. federal regulations require drivers to submit to pre-employment, random and for-cause drug tests following a recordable accident,” says Blair Gough, an international carrier consultant and Truck News columnist. “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.”

Clearly, the Court of Appeal’s ruling places U.S.-bound carriers in violation of the Human Rights Code if they try to force their drivers to comply with the U.S. regulations. But Gough believes it will have no net effect on the industry.

“If a carrier doesn’t want to do the tests, the U.S DOT will just say, `that’s fine, your driver just can’t enter this country,'” he says. “So I think companies will just take the position that all their drivers must submit to voluntary tests.”

The ruling does set up a bit of a Catch-22 situation, acknowledges Eliadis: “It’s a problem. The Court’s ruling only really applies in Ontario, and it only has persuasive power in Canada. There will probably need to be some lobbying done to try to sort out the jurisdictional problems, because it does put the trucking companies in an impossible situation.

“The only way around it may be not to allow the companies driving to the States to demand drug tests from their drivers, but they could make the employee aware that this is a requirment if they want to do that type of work.” n