DRUG TESTING: OVER EXPOSED

Brampton, Ont.-based labour attorney Christopher Andree surprised a few Private Motor Truck Council members at their annual conference in September when he told them it may be discriminatory to pre-employ or randomly test drivers for drugs — even if it’s to comply with U.S. drug test regulations.

Andree’s interpretation of the alcohol and drug testing rules comes in the wake of the Ontario Court of Appeal’s ruling in the Entrop v. Imperial Oil human rights case last year. Although the case was based on employment reinstatement regarding alcohol testing, Justice John Laskin commented on drug testing in an obiter dicta, which outlined fundamental differences between drug and alcohol tests.

According to the ruling, when someone is tested and found to have more than .04% alcohol in their system, that person is deemed to be impaired. However, current testing methods do not support the same conclusion for drugs.

“The presence of drugs can be detected in the system long after the mind-altering effects have worn off and the person is no longer under the influence,” says Andree, a partner with Crawford Chondon & Andree LLP. “The presence of drugs does not necessarily indicate impairment. It’s not a decision made by anyone. It’s a fact of biology.”

So because drug tests cannot indicate impairment, Laskin concluded it would be discriminatory to pre-employ or randomly test for drugs, and in Andree’s opinion, a carrier would likely lose a challenge by one of their drivers who was randomly tested.

“Although the obiter wasn’t necessarily a formal decision on pre-employment and random drug testing, it is certainly guidance from a very respected court in Canada and the Ontario case can be used as a precedent in other cases or arbitration hearings,” says Barbara Butler, a Toronto-based alcohol and drug policy consultant.

Other provincial human rights tribunals have adopted Laskin’s obiter as part of their own alcohol and drug testing policies, and the Federal Human Rights Commission-which regulates much of the trucking industry-is in the process of revising its own policy. If the feds adopt Laskin’s comments on random drug testing, it would theoretically make it discriminatory to randomly test drivers, despite the fact many carriers are already doing it to comply with U.S. law, which states truck drivers must undergo testing to operate in the United States.

Butler would not speculate, but said the tribunal addressed crossborder trucking in relation to drug testing in a consultation paper earlier this year. “To be clear, I don’t think we can conclude absolutely this would happen,” Butler says. “However if they issue a revised policy that questions the cross border requirements, then we may have a dilemma.”

It is that very business dilemma Andree is warning trucking companies about. “In my mind, based on reading the case law, randomly testing for a U.S. requirement is discriminatory,” he says. “I have little doubt that (the federal commission) will adopt the approach taken by the Ontario Court of Appeal.”

Andree says carriers will have to weigh their priorities of running into the U.S and abiding by its drug testing rules versus the potential of a legal challenge by drivers. It doesn’t leave carriers with many options. Like many in the industry, carriers can continue random testing for crossborder shipping and hope no challenges are brought against them or don’t test and stop running into the U.S., which for many carriers is not an option.

Carriers can also accommodate drivers who refuse testing by switching them to Canada-only routes-if they have Canada-only routes to offer. Even so, carriers must still be careful when changing a driver’s route, says Andree. “The question is whether that run will be seen as an accommodation in a human rights context but also a constructive dismissal,” he says. “If there’s a substantial change in their employment terms, it’s constructive dismissal.”

Furthermore, Butler fears that putting drivers who refuse a drug test on Canada-only runs will create a two-tiered testing system. “You don’t want two classes of people-drivers that figure they can use drugs because they’re not subject to random tests and those that can’t,” she says.

Neither Andree nor Butler suggests that Canadian carriers stop running into the United States. They’re just warning companies that they may be vulnerable to a challenge. “I don’t think many companies will have a problem if they continue testing,” Butler says. “If there’s going to be an issue it will likely result from a driver challenging any discipline triggered by a positive test result.”

To make things even more complicated, getting drivers to volunteer to drug testing is not a bulletproof solution, either. A driver who changes his mind has the law on his side, says Andree. “You cannot contract out of human rights,” he says.

Meantime, there’s not much carriers can do if the commission adopts Laskin’s comments. The only real solutions would be to give crossborder truckers an exemption or lobby the U.S. to change its zero-tolerance policy on drug testing-both of which are highly unlikely.

“What the Ontario human rights process has done is turn law-abiding companies into discriminators by putting them in a position to either refuse U.S. business or discriminate against employees,” says Andree. “It’s a very unfortunate position to put them in.”