The question requires employers to balance a number of competing issues
Question: Can I test my employees for drug use?
Answer: Drug testing may occur in a variety of different permutations and combinations. The circumstances in which testing occurs will very often determine whether it will be considered a valid exercise of an employer’s management rights, an unreasonable invasion of privacy or discrimination on the basis of mental or physical disability.
Relevant factors include whether the testing is random or triggered by some incident or conduct; whether there are safety issues inherent in the work being performed; whether there is an ongoing drug problem in the workplace; whether employees are selected for testing or dealt with after testing in a discriminatory manner; and whether testing procedures and methods are effective and necessary. The ability of an employer to test in a particular situation can also vary from province to province.
Generally speaking, employers have no interest in employees’ off-duty conduct and no right to police that conduct. Accordingly, it is not open to an employer to initiate drug testing simply to satisfy itself that its employees are virtuous. To justify the invasion of employee privacy caused by a drug test, the employer must be able to demonstrate a legitimate interest of its own that can only be protected through such testing.
The interest typically pointed to in justification of drug testing is the employer’s interest in maintaining workplace safety. Employers are obliged under common law and statute to provide a safe environment for employees and others who might be affected by their employees’ conduct. On-duty impairment can compromise workplace safety, particularly where the workplace itself is inherently dangerous or where the employee’s position is safety-sensitive (whether because of the work performed, the equipment operated, the nature of the materials handled and/or the potential consequences of impaired performance).
Accordingly, drug testing may be permissible where it is reasonably necessary for the prevention, reduction or investigation of workplace drug use.
Drug testing may also be permissible in the context of an accommodation of employee disability. Drug addiction (as opposed to recreational drug use) clearly constitutes a disability under human rights legislation. Like any other employee with a disability, an employee disabled by drug addiction is entitled to accommodation from his or her employer. In many cases, the employee’s addiction will result in a neglect of employment obligations or misconduct attributable to the addiction. The employer’s duty to accommodate this behaviour will often involve tolerance of absence, assistance in rehabilitation and reinstatement upon recovery.
Employers that have accommodated an addicted employee during their absence and continue to do so upon their return to work may be entitled to some proof the employee’s own accommodation obligations are being met through abstinence. Drug testing is often permitted in such cases, frequently in the context of a last-chance agreement.
Even where there is a recognized interest of the employer, there are obstacles facing employers who wish to initiate drug testing.
Random testing is the most controversial and is usually permitted in unionized environments only on very specific facts, such as a time-limited condition on an employee’s return to work or where an employer can demonstrate the existence of a pervasive drug culture in a safety-sensitive workplace. Less controversial is the use of pre-employment testing, where applicants for employment are notified in advance that any employment offer is conditional on a successful drug screening.
For-cause and post-incident testing are generally permitted as part of a larger workplace investigation under certain conditions. The existence of reasonable cause to suspect impairment is fact specific; testing may be justified where an employee shows observable signs of impairment or is arrested for a drug-related offence.
As in all cases of drug testing, however, the employer should consider whether the facts necessitate testing in the particular circumstances or whether the same result could be achieved in a less invasive manner. The law demands that employers respect the privacy and bodily integrity of employees and will not tolerate employer conduct that sacrifices employee rights for the employer’s convenience.
The same concerns underlie the requirement that any testing be minimally invasive, be conducted in a sensitive manner and not expose the employee to undue humiliation or embarrassment. Any failure to afford an employee such protections may expose the employer to liability.
For many years, the technology used in drug testing was unable to detect current impairment. This was a significant hurdle to an employer seeking to justify testing for drugs as even positive test results revealed only that an employee had used drugs in the past. The tests did not reveal whether the employee had been impaired on-duty and thus did not reveal information that it was in the employer’s interest to know. Although drug testing methods now exist to detect current impairment, some adjudicators continue to regard drug testing as inappropriate except under very stringent conditions.
However, one arbitrator’s view that random testing could only be approved where the employer could show a history of drug-related accidents or an ultra-hazardous endeavour was recently rejected on judicial review. In the view of the reviewing court, the employer was only required to establish a dangerous workplace to use testing as part of a proactive approach to safety concerns. The Court indicated it was not appropriate to preclude the use of random testing where impairment would pose a risk to other employees or to the environment.
As the jurisprudence in this area remains unsettled, an employer’s best approach is to develop a comprehensive drug and alcohol policy that complies with the current law in the jurisdiction of operations, to thoroughly train those charged with its administration and to keep an eye on new development that may change the legal landscape.
Tim Mitchell is a partner with Armstrong Management Lawyers in Calgary who practices employment and labour law. He can be reached at [email protected].
