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Court rules reasonable cause needed for drug tests on unionized workers

Random drug testing without reasonable cause is an "unwarranted intrusion" on employees' privacy and "an unjustifiable affront to their dignity."

Ottawa (22 June 2009) – Ontario's top court has ruled that companies cannot, without reasonable cause, require random drug tests from their unionized workers who perform safety-sensitive jobs.

The unanimous May 22 judgment by Ontario Court of Appeal ruled that the random drug testing policy launched in 2003 by the appellant Imperial Oil Ltd. was not a reasonable exercise of the management rights and workplace safety provisions contained in the company's 1996 collective agreement with its petroleum refinery workers in Nanticoke, Ontario. The Court case was brought forward by the Communications, Energy and Paperworkers Union of Canada (CEP) and its Local 900 which represents the workers.

The ruling affirmed that the company's policy of conducting randomized, mandatory saliva mouth-swab testing of employees in safety-sensitive positions was null and void because it did not comport with the company's contractual obligation to treat its workers with "respect and dignity."

As found by the original majority decision of an arbitration board, Imperial's policy of random drug testing without reasonable cause was an "unwarranted intrusion" on employees' privacy and "an unjustifiable affront to their dignity," the appeal court agreed.

The judgment marks the first time a provincial court of appeal has pronounced on workplace saliva testing, a newer form of drug testing technology.

Imperial rolled out the saliva testing in 2003 to replace the drug testing policy the company jettisoned in 2001 after the Court of Appeal ruled in a case that involved a challenge to urine drug testing by non-unionized workers under Ontario's Human Rights Code - that urinalysis doesn't promote the legitimate goal of a drug-free, safe workplace because urinalysis identifies past drug use, rather than on-the-job impairment.

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