Drug-Testing Policy Discriminatory

Entrop v. Imperial Oil Ltd. (No. 6) (1995), 23 C.H.R.R. D/196 (Ont. Bd.Inq.)

The Board of Inquiry finds that Imperial Oil Limited discriminated against Martin Entrop, a senior operator at the Sarnia Refinery, because of a handicap or a perceived handicap.

There is little disagreement in this case about the facts. The Board of Inquiry finds that under a new Alcohol and Drug Policy introduced in 1992, Imperial Oil employees in "safety-sensitive" positions were required to notify management if they currently had or had previously had a substance abuse problem. Knowing that this Policy would shortly come into effect, Mr. Entrop informed his employer in late 1991 that he had had an alcohol problem about ten years earlier, that he had attended Alcoholics Anonymous, and that he had abstained from using alcohol since 1984.

Though Mr. Entrop had been an employee for seventeen years and there had been no problems with Mr. Entrop's work that were related to substance abuse, the policy required that Mr. Entrop be immediately removed from his position. He was assigned to a less desirable one as an outside operator, with no loss of pay. He was informed that he would be retrained as a technician and that his wages would be frozen for five years until the pay rate for technicians caught up to his current rate of pay.

Subsequently, provisions were made in the policy to allow for reinstatement. Mr. Entrop applied for reinstatement to his position in March 1992. In order to obtain reinstatement Mr. Entrop was required to comply with a process of certification, which entailed undergoing medical and psychological evaluation. At the request of his employer, Mr. Entrop attended Parkside Lutheran Hospital in Park Ridge, Illinois, where he underwent extensive medical and psychological assessment. This assessment involved detailed examinations, canvassing such issues as Mr. Entrop's childhood upbringing, addiction history, marital and family history, religious history, use of tobacco, demeanour, emotional affectations, parenting skills, exercise regime, intelligence levels, stress levels, sleeping patterns, levels of self-esteem, current lifestyle, grooming and coping skills. This resulted in a conclusion that his "alcohol dependence was in remission" and that there were "no psychological or psychiatric reasons that would prevent the patient from resuming his full duties at this time." Mr. Entrop's supervisors also indicated that there were no performance concerns that could be in any way associated with substance abuse.

On May 15, 1992, Imperial Oil notified Mr. Entrop that he would be reinstated to his former position as senior operator if he would agree to sign an undertaking regarding post-reinstatement controls. The undertaking provided that he would undergo additional unannounced alcohol testing at least twice per quarter, continue to abstain from alcohol, report to his supervisor any alcohol or drug-related charges, report any changes in his circumstances that might increase the risk of relapse, undergo an annual medical examination, agree to quarterly performance and compliance reviews, agree to be subject to Imperial Oil's Alcohol and Drug Policy, and agree that his reinstatement was subject to maintaining satisfactory job performance and compliance with these conditions.

Though Mr. Entrop felt that he was being singled out and treated differently because there were other employees who did drink who were not subject to these conditions, Mr. Entrop signed the undertaking and complied with it in order to be reinstated in his job.

All random tests done on Mr. Entrop were negative for the presence of any alcohol or drugs. In view of his continued sobriety and the consistent pattern of negative tests results, Imperial Oil reviewed the original conditions of Mr. Entrop's undertaking in January 1995. The requirements for additional unannounced tests and yearly medical examinations were dropped. Quarterly performance reviews were eliminated, and the stipulation that his reinstatement was conditional upon maintaining satisfactory job performance was also deleted. Other conditions remained in effect.

The Board of Inquiry finds that although the definition of handicap in the Ontario Human Rights Code does not specifically include "alcoholism" or "dependence on alcohol" or "alcoholism in remission," expert evidence lead in the hearing indicates that "alcoholism" fits without difficulty into the definition of handicap, as an illness or disease creating physical disability or mental impairment, and interfering with physical, psychological and social functioning.

The Board also finds that the prohibition against discrimination "because of handicap" proscribes discrimination against persons who had a handicap at some time. The evidence in this case indicates that whatever risk of relapse Mr. Entrop might have posed in fact, his employer based its employment decisions upon its knowledge of Mr. Entrop's prior alcohol dependency. The language of the Code attempts to protect individuals who are "believed to have or have had" a handicap. Past alcoholism, however remote in time, also constitutes a "handicap" under the Code, particularly to the extent that an individual continues to be perceived as addicted or dependent.

The Board of Inquiry rejects Imperial Oil's argument that Mr. Entrop was treated equally and without discrimination because he was treated no differently than other employees in safety-sensitive positions. The respondent argued that it was required to make an assessment of the risk Mr. Entrop posed, and that at the conclusion of this assessment he was reinstated in his position with no loss of opportunity, status, or rate of pay.

However, the Board finds that requiring employees to identify and stigmatize themselves as having (or having had) a substance abuse problem amounts to direct discrimination under the Code. In addition, as a consequence of Mr. Entrop's disclosure, he was removed from his position because of his "perceived handicap." This action also constitutes direct discrimination, the Board finds. Finally, Mr. Entrop was subjected to a lengthy process of assessment and certification prior to obtaining reinstatement in July 1992, and required to accede to a series of conditions which were not imposed on other employees without handicaps or perceived handicaps. This too constitutes a form of direct discrimination.

To defend its actions, the respondent must show that it developed the Alcohol and Drug Policy in good faith in order to prevent handicapped persons from undertaking duties which they were incapable of performing, and that under the standard of reasonable necessity, Mr. Entrop was incapable of fulfilling the essential requirements of a safety-sensitive job because of his history of alcohol dependence.

The Board of Inquiry accepts that Imperial Oil developed the Alcohol and Drug Policy in good faith, believing that it would result in a substantial reduction in accidents due to impairment.

The Board of Inquiry also finds that being free of alcohol impairment is an essential requirement for safety-sensitive jobs at Imperial Oil. However, the evidence does not establish that, due to his past alcohol abuse problem, Mr. Entrop was incapable of meeting this requirement. An employer needs to provide substantive evidence that an employee's physical or mental condition is having a negative impact on job performance. The evidence here falls far short of that standard.

The Board of Inquiry concludes that the respondent failed to meet the second branch of the bona fide occupational requirement test because it could not show that the treatment of Mr. Entrop was objectively justified as reasonably necessary.

Even if the Board had found differently on this point, Imperial Oil would still be required to show that it had accommodated the complainant pursuant to s. 17(2) of the Code. The Board of Inquiry rejects Imperial Oil's argument that the self-declaration, reassignment and assessment measures it took pursuant to the policy were an "accommodation" of Mr. Entrop as required by s. 17(2).

While Imperial Oil has the right to attempt to ensure that employees in safety-sensitive positions are not impaired by alcohol, because freedom from impairment by alcohol is a bona fide occupational requirement for such jobs, the methods of assessment chosen by Imperial Oil, such as mandatory self-disclosure and automatic reassignment out of safety-sensitive positions, are more questionable. Where alternative measures exist, such as supervisory monitoring programs, peer-control programs, and employee assistance programs, employers should utilize the least drastic means of assessing its work force for alcohol impairment risks. Mandatory self-disclosure of past alcohol dependency, no matter how long ago in the past, is an unreasonable requirement, as is automatic reassignment. Also, the undertaking Mr. Entrop was required to make to obtain reinstatement, given the low risk of relapse that he presented, was intrusive, excessive and unjustified.

The Board of Inquiry concludes that neither mandatory self-disclosure of past dependency, nor automatic reassignment, nor reinstatement pursuant to the controls set out in Mr. Entrop's undertaking meet the requirements of "accommodation" under s. 17(2) of the Code.

Argument and decision regarding remedies is postponed until other aspects of the complaint are dealt with.

(For summary of the appeal decision see: Imperial Oil Ltd. v. Entrop (1998), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)).)

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