Employers should not conduct random drug tests: CHRC

Canadian Human Rights Commission's new policy on drug testing gives employers guidelines to follow

Employers should not conduct random drug testing of employees, the Canadian Human Rights Commission has ruled, and workers should only be subjected to random alcohol tests if they’re in a position where safety is at stake.

The new policy closely reflects the precedents set in the landmark 1999 Ontario Court of Appeal case, Entrop v. Imperial Oil., which established that, because drug-testing can not measure impairment at the time of the test (it only detects past use), random drug testing, even in safety-sensitive positions can not be justified. Whereas alcohol testing, such as breathalyzers, can determine if a person is fit to work and therefore, more acceptable.

“Based on this (Entrop) decision, it would appear that if an employer seeks to introduce random drug testing into the workplace, it will only be successful if there is drug-testing technology that can demonstrate a current state of impairment, as a breathalyser can demonstrate alcohol impairment,” states the new policy.

The new policy only applies in federal and federally regulated workplaces but the commission also suggested that other jurisdictions and sectors will have similar guidelines if they don’t already.

“The Entrop decision is final and will not be appealed. It will bind arbitrators and tribunals in Ontario in the future, and will be highly persuasive in proceedings in other provinces and territories.”

In releasing its policy yesterday, the commission also said addiction is a disability and employees should be helped, not punished. Its policy states the following types of testing are not acceptable, because they cannot be established as bona fide occupational requirements:

•pre-employment drug testing;

•pre-employment alcohol testing;

•random drug testing; and

•random alcohol testing of employees in non-safety-sensitive positions.

In order for an employer to establish a bona fide occupational requirement, it must be shown that a policy is rationally connected to job performance, adopted in good faith and necessary to the fulfilment of the job. Requiring an employment applicant to undergo a drug test as a condition of employment will, in most cases, be considered a discriminatory practice on the ground of disability.

“Employers who wish to establish a workplace drug-and-alcohol testing policy that respects the rights of their workers will find a useful tool in this policy,” said Anne Adams, acting chief commissioner of the CHRC.

The Canadian Human Rights Act prohibits discrimination on the ground of disability or perceived disability, and drug and alcohol dependency are considered disabilities under the Act. The legislation requires employers to accommodate the needs of employees to the point of undue hardship

For more information click on the links below or visit the Canadian Human Rights Commission’s Web site at http://www.chrc-ccdp.ca.

Latest stories