Randomly testing Canadian truck drivers for drugs in order to comply with US law is a necessary part of doing business.

It’s also quite illegal.

Most carriers shrug off this often-described overzealous Canadian policy without much thought. After all, the lion’s share of drivers don’t really want to bite the hands that pay them.

Still, there have been some complaints. And if a driver does pipe up with a problem, the rulemakers generally come down on his side. The precedent that the courts leaned on has been the landmark Entrop vs. Imperial Oil case. Basically, the ruling, which came down in 2000, said carriers in Canada shouldn’t test for drugs even if they have to run into the States. And if you do conduct a drug test, you probably have no right to fire a person who fails.

Written by Justice John Laskin of the Ontario Court of Appeal and then endorsed by the Canadian Human Rights Commission, the ruling also concluded companies shouldn’t insist on drug tests before hiring a driver, either.

The court reasoned that, unlike alcohol testing which categorically shows impairment, drug testing does not. In other words, a test can detect the presence of drugs long after the mind-altering effects have worn off.

Even more controversial was the ruling that employees who test positive for drugs could not be terminated because they are disabled or “perceived” to be dependant (and thereby disabled according to Canadian law) — even if testing is determined to be a “bona fide occupational requirement [BFOR].”

That means an employer would have to accommodate the driver and perhaps provide a new position with similar duties and pay. For a truck driver who crosses the border, putting him on a Canada-only route of similar distance would be an obvious accommodation. It all sounds very unwieldy.

But recently, there’s been some good news for U.S.-bound haulers. A new decision by the Canadian Human Rights Tribunal implies that carriers who randomly test for drugs as a requirement for U.S. operations may have an easier time fending off a human rights challenge.

Earlier this year the Tribunal ruled on a case called Milazzo vs. Canadian Human Rights Commission. Milazzo is Salvatore Milazzo, a bus driver with Montreal-based Autocar Connaiseur Inc.
Before 1999, Milazzo’s runs were local, mostly around Montreal. But after a key contract with the Montreal Casino dried up, the company pursued more U.S. runs.

Milazzo was terminated when his urine tested positive for marijuana. The company insisted it needed all its drivers to be able to head across the border on short notice because passengers might be stuck if something were to happen to the original driver or the bus. So, the company said, the drivers had to be drug tested.

On one hand, the Tribunal ultimately sided against Autocar because the company’s written policy didn’t include a provision to accommodate positive drivers up to undue hardship.

Conversely, the Tribunal, for really the first time, did acknowledge the impact on the company’s well-being if it lost its U.S. Department of Transportation operating licence as a result of a positive drug test.

Although it clearly wouldn’t sanction a zero-tolerance drug policy, the Tribunal found the practice of random testing “reasonably necessary.” And it seemed to suggest termination could be justifiable in situations where a company could not accommodate drivers to Canada-only operations.

According to Chris Andree, a labour policy expert and partner with Brampton, Ont.-based law firm Crawford Chondon & Andree LLP, that particular part of the ruling is extremely significant.

“There was at least a recognition that this creates problems for a company that has drivers going to the U.S., and [drug testing] is a requirement to get them across the border,” he says. “What they specifically addressed was that if you could show that the company’s vast majority of work included driving to the U.S., and if it would cause undue hardship to provide alternate [work], then you could say [random testing] is a BFOR.”

Furthermore, Andree predicts that because of the Tribunal’s interpretation, the definition of “undue hardship” will become less stringent as time goes on. “It may take on a meaning that heads toward ‘inconvenienced’ instead,” he says.

Milazzo was also notable given the Tribunal’s finding that the company’s random testing could be reasonably necessary, even though drug tests can’t actually demonstrate impairment on the job.

The Tribunal held that Autocar was justified to rely on a positive drug test as a “red flag.” According to the Tribunal, while drug tests cannot establish impairment, they can identify drivers who present an elevated risk.

The decision therefore suggests more tolerance for testing under the Canadian Human Rights Act. “That’s definitely different than Entrop, which didn’t evidence that impairment [in regards to random tests] is essentially irrelevant, while Milazzo said it’s a pretty good indicator there may be a problem.”

However, Andree warns that all these challenges are decided on a case-by-case basis. Any new tolerance for either drug testing or termination will likely depend on circumstances similar to the ones noted in the Milazzo case.

“Having a good policy alone is not going to get you over the hump,” Andree says. “You’re still going to have to analyze your facts and compare them with what happened in Autocar and then seek good legal advice.”

In fact, carriers who don’t have all or most of their fleet dedicated to the US, may have difficulty convincing a court that they had to fire a driver without accommodating him with other work.

“I think that trucking folks would have a tougher time establishing a [fleet-wide] policy than busing companies,” he says. “Theoretically, a truck carries freight, not people. So a court may not consider it necessary to have all your [driver pool] ready to head to the U.S. in an emergency situation.”

While there’s now language that gives U.S. operations special consideration for drug-testing policies, carriers shouldn’t expect a similar liberalized philosophy in respect to Canada-only operations –at least not anytime soon.

“The only reason that it’s likely to be allowed in Canada is because of this necessity to get into the US,” says Andree. “But as our roads get more congested, and as other factors come into play, is there going to be a willingness to have more safety-oriented regulation in respect to truckers? Perhaps. But that’s a long progression between here and there.”