Ontario Human Rights Commission launches complaint over random drug tests

Commission critical of pre-employment and random drug testing policy by Goldcorp Inc.

The Ontario Human Rights Commission has launched a complaint against an employer’s drug-testing policy.

The commission alleges that Vancouver-based Goldcorp Inc.’s drug and alcohol testing policy violates Ontario’s Human Rights Code.

In 2002, the commission received a complaint from Goldcorp employees. When the complaint was settled in 2004, Goldcorp agreed to attempt to work with the commission to update its policies to reflect the code and current human rights law.

“However, at this time, Goldcorp’s policy continues to permit random and pre-employment drug testing of all employees, as well as pre-transfer drug testing for select employees,” the commission said in a press release.

It said courts have found that pre-employment and random drug testing are not related to an employee’s current level of impairment, or their ability to perform their job.

“Drug testing shows only past use, and therefore provides no evidence of impairment,” the commission said. “Random alcohol testing can measure impairment and may be warranted for safety-sensitive positions as part of a larger program to achieve a work environment free of alcohol and drugs.”

The commission’s Policy on Drug and Alcohol Testing, revised in 2000, recognizes that the law identifies dependence on a substance, such as drugs or alcohol, as a form of disability, a position reaffirmed by the Ontario Divisional Court in its recent decision in Kelly v. Toronto Police Service. Employers have a duty to accommodate employees with dependencies short of undue hardship, the commission said. At the same time, freedom from impairment by drugs or alcohol is a bona fide job requirement.

Individuals with dependencies may be removed from their job responsibilities for cause, such as behaviour that could put others in danger, or following an actual or near miss incident. However, less severe sanctions than dismissal, and necessary support to permit treatment, must be considered.

”The Commission always prefers a co-operative approach to resolving human rights concerns,” said chief commissioner Barbara Hall. “However, after more than two years of negotiations, we felt it was necessary to initiate this complaint so that the commission could use its legislated power to investigate the situation.”

The code gives the commission the power to file a complaint and investigate any matter that may be leading to discrimination against a group protected under the code, in this case, persons suffering from drug and alcohol addictions. No determination has been made at this point, and following an investigation, if the matter is not resolved, the commission may decide to refer or not refer the complaint to the Human Rights Tribunal of Ontario for a hearing.

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