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Random Saliva Swab Drug Testing Prohibited
January 23, 2007

An Ontario arbitration board has ordered an employer to stop random saliva swab drug testing of employees who work in safety-sensitive positions.

The employer had previously suspended random drug testing by urinalysis after the Ontario Court of Appeal ruled that it offended the Ontario Human Rights Code. Because urinalysis could not measure present impairment, the Court found it discriminated against employees on the basis of a “perceived disability”, since it assumed that any individual who tested positive was a substance abuser who could be expected to be impaired at work. However, the Court found that use of a breathalyzer to randomly test employees in safety-sensitive jobs did not violate the Code because it could prove “actual impairment”. Based on that ruling, when a new saliva swab test became available that could accurately measure marijuana levels indicative of actual impairment, the employer reintroduced random drug testing.

The union’s grievance succeeded. The arbitrator found that saliva swab testing was highly privacy invasive and that random, unannounced alcohol or drug testing, including saliva swab testing, is impermissible except as part of an agreed rehabilitative program, or where an employee is found to have a problem with alcohol or drug use. On this reasoning, drug testing is only permissible when there is reasonable cause to test or to investigate the cause of a significant accident.

Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900, December 11, 2006 (M. Picher)