Tailored Pre-Employment Testing Given the Green Light
October 2018
Article by:
Michael R. Kilgallin
Previously printed in the LexisNexis Labour Notes Newsletter.
In BC Hydro and Power Authority -and- International Brotherhood of Electrical Workers, Local 258 (Arbitrator John Hall) (May 23, 2018), the employer implemented a pre-employment drug and alcohol testing requirement for new applicants applying for safety-sensitive positions under the hiring hall provision of the collective agreement. The testing did not apply to current employees but only new applicants. The employer also had a drug and alcohol policy that applied to employees and outlined post-incident and reasonable cause testing.
The union grieved the pre-employment testing. Normally, pre-employment testing falls outside the collective agreement since it occurs before the employment relationship commences. However, the parties’ collective agreement specifically stated that “hiring will be subject to reasonable employment and reasonable medical standards of the employer”. As a result, the employer agreed that a labour arbitrator had jurisdiction to hear the grievance.
The union argued that pre-employment testing was analogous to random testing since there was no underlying individual reasonable cause, and therefore required “evidence of a general problem with substance abuse in the workplace” as set out in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”).
After distinguishing pre-employment testing for new applicants from pre-access testing for existing employees (as part of a new position or access to a safety-sensitive position or area), Arbitrator John Hall concluded that it was not possible for an employer to show the Irving-type “evidence of a general problem with substance abuse” when dealing with new applicants. Accordingly, Irving did not apply to pre-employment testing.
Instead, a balancing of interests approach was applied. It was notable that the applicants were not known to the employer, did not have seniority rights or other protections under the collective agreement, and had a reduced expectation of privacy since they were cautioned in advance about the pre-employment testing and given options.
Regarding the specifics of the pre-employment testing, the applicant had up to five days to be tested. If the applicant did not pass the test, he or she could withdraw from the specific posting but reapply for future postings or have an assessment by a substance abuse professional at his or her own cost. Depending on the assessment of the substance abuse professional, the employer would consider its duty to accommodate. The employer required the test to determine if there was a “red flag” regarding the applicant’s ability to work safely. It was notable that the union was unable to suggest any other means to identify applicants with potential substance abuse problems who could create safety risks.
Overall, the arbitrator found that the specifics and purpose of the pre-employment testing was reasonable. Further, a positive test was not conclusive of whether the applicant had a substance use disorder; it just triggered further investigation about the fitness of the applicant for employment in a safety-sensitive position.
Arbitrator Hall did not accept the union’s alternative argument that the pre-employment testing was discriminatory. The applicants who tested positive could be individually assessed by a substance abuse professional and were not prevented from applying for future postings. Accordingly, the pre-employment testing was a bona fide occupational requirement for applicants seeking employment in safety-sensitive positions.
Employer takeaways:
- Pre-employment testing typically falls outside the collective agreement and is not subject to arbitration.
- This case does not support the position that all pre-employment testing is permitted. Rather, the details of the pre-testing program will be subject to the balancing of interests test.
October 2018
Previously printed in the LexisNexis Labour Notes Newsletter.
In BC Hydro and Power Authority -and- International Brotherhood of Electrical Workers, Local 258 (Arbitrator John Hall) (May 23, 2018), the employer implemented a pre-employment drug and alcohol testing requirement for new applicants applying for safety-sensitive positions under the hiring hall provision of the collective agreement. The testing did not apply to current employees but only new applicants. The employer also had a drug and alcohol policy that applied to employees and outlined post-incident and reasonable cause testing.
The union grieved the pre-employment testing. Normally, pre-employment testing falls outside the collective agreement since it occurs before the employment relationship commences. However, the parties’ collective agreement specifically stated that “hiring will be subject to reasonable employment and reasonable medical standards of the employer”. As a result, the employer agreed that a labour arbitrator had jurisdiction to hear the grievance.
The union argued that pre-employment testing was analogous to random testing since there was no underlying individual reasonable cause, and therefore required “evidence of a general problem with substance abuse in the workplace” as set out in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”).
After distinguishing pre-employment testing for new applicants from pre-access testing for existing employees (as part of a new position or access to a safety-sensitive position or area), Arbitrator John Hall concluded that it was not possible for an employer to show the Irving-type “evidence of a general problem with substance abuse” when dealing with new applicants. Accordingly, Irving did not apply to pre-employment testing.
Instead, a balancing of interests approach was applied. It was notable that the applicants were not known to the employer, did not have seniority rights or other protections under the collective agreement, and had a reduced expectation of privacy since they were cautioned in advance about the pre-employment testing and given options.
Regarding the specifics of the pre-employment testing, the applicant had up to five days to be tested. If the applicant did not pass the test, he or she could withdraw from the specific posting but reapply for future postings or have an assessment by a substance abuse professional at his or her own cost. Depending on the assessment of the substance abuse professional, the employer would consider its duty to accommodate. The employer required the test to determine if there was a “red flag” regarding the applicant’s ability to work safely. It was notable that the union was unable to suggest any other means to identify applicants with potential substance abuse problems who could create safety risks.
Overall, the arbitrator found that the specifics and purpose of the pre-employment testing was reasonable. Further, a positive test was not conclusive of whether the applicant had a substance use disorder; it just triggered further investigation about the fitness of the applicant for employment in a safety-sensitive position.
Arbitrator Hall did not accept the union’s alternative argument that the pre-employment testing was discriminatory. The applicants who tested positive could be individually assessed by a substance abuse professional and were not prevented from applying for future postings. Accordingly, the pre-employment testing was a bona fide occupational requirement for applicants seeking employment in safety-sensitive positions.
Employer takeaways:
- Pre-employment testing typically falls outside the collective agreement and is not subject to arbitration.
- This case does not support the position that all pre-employment testing is permitted. Rather, the details of the pre-testing program will be subject to the balancing of interests test.