One long-standing challenge faced by Canadian employers operating safety-sensitive workplaces is ensuring that their workers are not impaired by drugs or alcohol while on duty. Ultimately, it requires navigating the complex legal constraints on testing employees for drugs and alcohol under Canadian law.
Even where an employee tests positive for drugs or alcohol, the employer must then carefully assess whether the employee has a disability in the form of an addiction/dependency before implementing corrective action, otherwise they may face substantial human rights exposure for discrimination. But what if an employee refuses to undergo a substance abuse assessment after testing positive for drugs and alcohol?
Fortunately, an Alberta court recently held in Quong v. Lafarge Canada Inc. [Lafarge] that an employer had cause to dismiss an employee due to him refusing to undergo a substance abuse assessment after he tested positive for cannabis following a relatively minor workplace accident.
Yet, before we celebrate, it is also important to note that this is a highly contextual area of law, one in which there is significant variation in decisions on post-incident drug testing in different Canadian jurisdictions. We discuss this below.
Background
Canadian employers are generally only legally permitted to require workers to submit to drug or alcohol testing in safety-sensitive workplaces in limited circumstances, such as where 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/near miss, or where the employee is returning to work after treatment for substance abuse. There are of course rare exceptions based upon the concept of bona fide occupational qualification.
Random testing of employees returning to work after treatment for substance abuse is also generally permissible for a reasonable period of time, however the Supreme Court of Canada has held that random testing of employees more broadly, is only permissible where there is evidence of an existing drug/alcohol problem in a safety-sensitive workplace.
In a nutshell, employers must also carefully navigate related human rights considerations when an employee tests positive for drugs or alcohol which can create further challenges, as illustrated by the Lafarge decision.
Quong v. Lafarge Canada Inc.
Mr. Quong was employed by Lafarge Canada Inc. (“Lafarge”) for over 20 years, first as a construction labourer, and ultimately as a Site Superintendent. As Site Superintendent, Mr. Quong was responsible for training employees on Lafarge’s Drug and Alcohol policy and enforcing the policy, among other duties.
In June 2022, Mr. Quong was involved in a minor accident when he backed a company vehicle into a mobile compactor unit on a job site, causing between $700 and $1,000 of property damage but no injuries. Mr. Quong then submitted to post-incident drug and alcohol testing and tested positive for cannabis. He later admitted that he had smoked marijuana the night before the accident while off duty, but he denied being impaired at the time of the accident.
In accordance with its drug and alcohol policy, Lafarge advised Mr. Quong that he would be required to take part in a substance abuse assessment with a third-party service provider, to determine whether he had a substance abuse disorder. Mr. Quong was further advised that: (i) he would be accommodated if he did have a substance abuse disorder; (ii) he would be disciplined and/or dismissed if he did not have a substance abuse disorder; and (iii) if permitted to return to work, he would be required to undergo random testing for 24 months and failure to provide a negative test during this period would result in his immediate dismissal.
Mr. Quong refused to participate in the substance abuse assessment and Lafarge terminated his employment for cause as a result. Mr. Quong subsequently sued Lafarge for wrongful dismissal, claiming 24 months of pay in lieu of reasonable notice.
The Court’s Decision
Ultimately, the Alberta Court of King’s Bench dismissed Mr. Quong’s claim, ruling that his refusal to participate in the substance abuse assessment established caused for his dismissal.
In reaching this decision, the court ruled that Lafarge’s policy was reasonable in light of its obligation to ensure health and safety in its safety-sensitive workplace, and expert evidence that cannabis use may cause impairment for up to 24 hours. Moreover, the court found that complying with the policy was a term of Mr. Quong’s employment because it was reasonable, unambiguous, well published, consistently enforced, and Mr. Quong was aware of the consequences of breaching it. The court also found that the initial post-incident testing was validly required under Lafarge’s policy because Mr. Quong’s actions or omissions caused or contributed to the accident and the accident caused significant property damage.
The court further ruled that the substance abuse assessment and subsequent two years of random drug testing was reasonable, despite Mr. Quong arguing that it was an unjustified invasion of his privacy. In particular, the court held that “once an employee tests positive for drugs after a workplace incident, privacy interests that might otherwise preclude random drug tests are outweighed by safety concerns”.
Finally, the court found that there was cause for Mr. Quong’s dismissal because his wilful refusal to participate in the substance abuse assessment and submit to random drug testing during the return-to-work period. This is because the policy was critical to ensuring a safe workplace in the circumstances, such that Mr. Quong’s refusal was incompatible with his continued employment.
In the result, Mr. Quong’s claim was dismissed, and he was not awarded any damages.
The Bottom Line
Lafarge is a positive decision for Alberta employers in that the court held that an employee’s refusal to undergo a substance abuse assessment and randomized drug testing following a positive drug test established cause for his dismissal. That said, it is crucial for employers to recognize that this area of law is highly contextual, and there is significant variation between Canadian jurisdictions.
For example, Ontario law is significantly stricter regarding when an employer is permitted to require post-incident drug testing in the first place. One decision that illustrates this is Jacobs Industrial v. International Brotherhood of Electrical Workers, Local 353 [Jacobs], which involved a very similar situation but opposite result. Namely, the arbitrator in Jacobs ruled that an Ontario electrician in a safety-sensitive workplace was justified in refusing a post-incident drug test after he backed a company vehicle into the only other parked vehicle in a lot, causing around $1,000 in damage to its bumper. This is because the Arbitrator found that Ontario law requires that an incident be “significant” to warrant post-incident drug testing, that this incident was not significant because the amount of property damage was trivial and there was no significant risk to the health and safety of employees. Consequently, the Arbitrator ruled that the employee’s privacy interests outweighed the employer’s interest in ruling out the possibility of drugs or alcohol being a factor in the accident. As a result, the Arbitrator found the employer’s application of their drug and alcohol policy to be unreasonable in the circumstances and they upheld the grievance.
Clearly, a “one-size-fits-all” approach to drug testing does not generally work particularly for multiple jurisdiction employers. To that end, employers with safety sensitive workplaces would be well advised to seek expert advice when there is any doubt in how their drug and alcohol policy should apply in a particular case.
If you require any advice or assistance related to preparing or applying a drug and alcohol policy in your workplace, please do not hesitate to contact us for expert legal advice and representation.
