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AC Privacy Employment 2007 No Random Saliva Swabs

AC Privacy Employment 2007 No Random Saliva Swabs - 1...

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www.lancasterhouse.com January 4, 2007 Drug testing: random saliva swabs not permitted Random drug testing has little if any place in Canadian workplaces, even safety-sensitive ones, according to a recent arbitration award that scrutinizes Imperial Oil's drug testing policy at its Nanticoke, Ontario refinery. The company had suspended random drug testing in 2001 after the Ontario Court of Appeal ruled, in Entrop v. Imperial Oil , [2000] O.J. No. 2689 (QL), that random drug testing offends the Ontario Human Rights Code . Because random drug testing using urinalysis "cannot measure present impairment," Imperial Oil's policy was held to discriminate against employees on the basis of "perceived disability" by treating them all as addicts. As "no tests currently exist to accurately assess the effect of drug use on job performance and … drug testing programs have not been shown to be effective in reducing drug use, work accidents or work performance problems," the court concluded that "random drug testing for employees in safety-sensitive positions cannot be justified as reasonably necessary to accomplish Imperial Oil’s legitimate goal of a safe workplace free of impairment." However, the court upheld random alcohol testing for employees in safety-sensitive jobs because a breathalyzer can prove "actual impairment of ability to perform or fulfil the essential duties or requirements of the job, as opposed to merely detecting the presence of substances in the system." See Lancaster's Human Rights and Workplace Privacy Reporter , July/August, 2000. In July 2003, having discovered a newly available swab test that could accurately measure marijuana levels in saliva indicative of actual impairment, Imperial Oil reintroduced random drug testing for employees in safety-sensitive positions. The Communications, Energy and Paperworkers Union of Canada, Local 900, representing employees of Imperial Oil's Nanticoke, Ontario refinery, launched a policy grievance challenging the company's action. Random saliva swabs not allowed under "Canadian model," arbitrator rules In a December 13, 2006 award, issued following eight days of hearing, a board of arbitration chaired by Michel Picher ordered the company to halt all random drug tests at its Nanticoke refinery. The chair forcefully ruled that "subjecting all employees to random drug testing by means of a [saliva] swab test simply cannot be reconciled with the well established, predominant Canadian arbitral jurisprudence which holds that, in a safety sensitive working environment, drug and alcohol testing can be required of an individual employee by his or her employer only where there is reasonable and probable cause to do so, or where there has been an accident or incident which would justify such a measure." After reviewing the arbitral jurisprudence, Picher identified five basic principles that are "tantamount to a Canadian code for drug testing in a safety sensitive workplace," and which "have become widely
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