Where do Canadian employers stand in using drug testing?

An update on what's happening on the drug-testing front for employers

Question: Where do Canadian employers stand in using drug testing as a screening tool or testing current employees?

Answer: Screening employees based on drug testing and drug use raises issues of participation in the workplace.

Human rights legislation applies to the hiring process by prohibiting employers from refusing to employ any person on the basis of a prohibited ground. It is widely recognized that drug addiction or alcoholism are disabilities for the purpose of human rights legislation.

Depending on the scope of the policy, not all positive tests will result in a finding an employee or prospective employee is anything more than a casual user of drugs or alcohol. However, if an employer perceives a mere casual user’s positive test indicates a dependency, that individual is entitled to the protection of human rights legislation.

In some jurisdictions, conducting drug and alcohol testing as part of the recruitment process is prohibited by the Human Rights Commission. For example, the Ontario Human Rights Commission prohibits employment-related medical examinations until a written offer of employment is made. In Alberta, the Human Rights Commission has considered drug testing during the hiring process contrary to the legislation (for example, see North American Construction Group Inc. v. Alberta (Human Rights & Citizenship Commission.)

In the case of all drug-testing policies, an employer must justify the potential discrimination by establishing the policy as a bona fide occupational requirement. An employer must be prepared to introduce evidence establishing a rational connection to the safe performance of work. The promotion of health and safety in the workplace by minimizing the possibility that employees will be intoxicated is a legitimate purpose.

Further, an employer must have an honestly held belief that a drug testing policy was necessary to achieve that purpose. This requirement is intended to ensure an employer is not introducing the policy for any improper purpose.

Finally, an employer must demonstrate that the screening policy is reasonably necessary to achieve the purpose of promoting workplace safety.

The Ontario Court of Appeal recently held that drug testing generally will not meet this last requirement. A positive drug test does not predict whether the individual will be impaired at any time while on the job and the drug test therefore does not advance the cause of workplace safety. On the other hand, alcohol testing, which does measure actual impairment of ability, was held to be reasonably tied to workplace safety.

But random drug and alcohol testing policies will not meet the final requirement unless the employer has satisfied its duty to accommodate. Accommodation in such cases could consist of referral to an employee assistance plan, reassignment to a job where safety considerations are minimized or a grant of leave to seek medical treatment. In determining the point at which such accommodation constitutes undue hardship, regard must be paid to the cost of these measures and an employee’s attitude toward treatment.

Policies which purport to have application to present employees are subject to further restrictions, including whether the consequences imposed for a positive test are consistent with the terms of an existing employment contract or collective agreement.

For more information see:

North American Construction Group Inc. v. Alberta (Human Rights & Citizenship Commission), 2003 CarswellAlta 1383 (Alta. Q.B.)

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com.

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