It is clear that mandatory drug and alcohol testing, including testing in the pre-employment is a

prima facie discrimination based on the prohibited ground of disability, but what about random
drug or alcohol testing policies? In this discussion forum, I will talk about an important case,
Entrop V. Imperial Oil Ltd. It is important because it reinforces that substance abuse is an issue
of disability which is protected under the human rights legislation and requires
accommodation. Moreover, the employer should pass the “Meiorin” test to justify the random
drug of alcohol testing policies are bona fide occupational requirement (BFOR).

When testing if the policy is appropriate, the Court always apply the three-step test that is
developed from “Meiorin”, and the policy must satisfy the criteria for a bona fide occupational
requirement (BFOR) in order to survive the “Meiorin” test. When applying “Meiorin” test to the
drug testing, both mandatory and random testing are not reasonably necessary, because it
cannot demonstrate the actual impairment of the employee on the job. Moreover, the
dismissal due to a single positive test result violates employee’s right to acquire
accommodation under the protection of human rights legislation. However, in Entrop, random
alcohol testing was shown to be appropriate to measure current impairment at a job, and it is
acceptable as long as the employer can pass the “Meiorin” test and meet the duty to
accommodate the employee who has a positive test result. Therefore, the result will depend on
the fact of each case.

Entrop decision has given the employer the power to test for substance abuse, as long as the
the policy can be balanced between the actual needs of the particular job and the employer can
accommodate the employee without serious punishment. Entrop strongly implies that the
employer should balance the employment safety conditions with the recognition that
substance abuse is a disability issue, which is a prohibited ground under the protection of
human rights legislation. The employer must pass the three-step of “Meiorin” test, and it is
often easier to pass the first two: the rule is rationally connected to the performance of the job,
and the employer adopts the standard in good faith belief. However, it may be difficult to pass
the third step, which is showing that the standard is reasonably necessary to the
accomplishment of that legitimate work-related purpose. The employer must acknowledge that
the sanctions should not be severe and amount to a dismissal, because substance abuse is a
disability issue and the employee should be accommodated properly.

Moreover, the impaction of Entrop for unions is that union should be alert on behalf of their
members, because for some particular jobs, the random alcohol testing is required and legal. If
the policy has passed “Meiorin” test, unions have to bear in mind that they can review that if
the employer has made every reasonable effort to accommodate the employee with substance
abuse disability.

In conclusion, it is acceptable that for some safety-sensitive positions, such as pilots and drives,
the random alcohol test may be a BFOR. However, the employer should show that the policy
has passed the “Meiorin” test, and there is an appropriate accommodation for the employee
with substance abuse disability. The policy of random drug and alcohol testing should be
reviewed from the actual facts.