In Canada, drug and alcohol testing in the workplace is a complex issue. There has yet to be any legislation passed by provincial or federal governments on the topic of drug and alcohol testing, which makes it difficult for employers to develop internal policies. There exists a fine line between testing for drug and alcohol use in the workplace and violating Canada’s charter of human rights.
So how does an employer develop and implement a successful alcohol and drug testing policy? They can start by defining job roles for high-safety positions, and then refer to past policies and court rulings to define what their policy will look like.
Strategy 1: Defining Job Roles
According to the Canadian Human Rights Commission (CHRC), employees in BFOR roles may be subject to drug and alcohol testing to ensure the safety of all workers. BFOR stands for Bona Fide Occupational Requirement. For example, if a worker or workers operate high powered cranes, they may be at risk of harming others if they are under the influence of drugs or alcohol while doing so.
The CHRC does not exactly define all BFOR job roles, which makes the policy unclear in the court of law. With vague policies and no defined legislation, BFOR is left open to interpretation by the courts. With aid of legal counsel and the union, employers can review each job role and weigh the hazards of the role in the event of a mistake or accident.
There are no clear cut laws, policies, or guidance from the Courts in Canada in regards to job roles that may not fall under BFOR. “Workplace rules and standards that have no demonstrable relationship to job safety and performance have been found to violate an employee’s human rights.”
An employer may be able to justify reasonable cause and post-incident/accident drug and alcohol testing of employees in non-safety-sensitive positions. It is recommended that testing should be considered only when an employee’s on-the-job behaviour provides reasonable grounds to believe the employee is impaired by drugs or alcohol. Employers should be proactive and monitor for pre-existing behaviour that is indicative of drug and alcohol use. To further assist with properly defining job roles and policies, an employer can also reference past court cases.
Strategy 2: Referring to Past Court Rulings
Because there is no law in Canada regarding drug and alcohol testing in the workplace, past court rulings sometimes become the precedent for future cases, especially if the Supreme Court has ruled on them. Below are a few key cases that have defined future outcomes of drug and alcohol testing in the Canadian workplace:
In 2003, Milazzo v Autocar Connaisseur was brought to the Canadian Human Rights Tribunal. The Tribunal distinguished between casual/recreational drug users and dependent drug users to find that dependent drug users are considered disabled and are therefore afforded protection under Canadian human rights legislation. The Tribunal also noted that the onus is on the employee to demonstrate that he/she is a dependent user by submitting professional assessments from health care practitioners.
A further outcome from this case affected commercial bus operators and trucking operations, who have since implemented pre-employment and random alcohol and drug testing as long as they accommodate employees who are found to be drug or alcohol dependent and thusly defined as disabled.
Similarly, a case from the Alberta Court of Appeal, Alberta (Human Rights and Citizenship Commission) v Kellogg, Brown & Root, found that recreational users of drugs were not entitled to protection under human rights legislation and only addicted users could be classified as disabled.
The case between Irving Pulp and Paper Ltd. and the Communications, Energy and Paperworkers Union of Canada, Local 30 was brought to the Supreme Court of Canada. In a 6-3 decision, the court ruled that the policy adopted by Irving Pulp and Paper Ltd. for employees in safety sensitive positions was unreasonable as it was not based on the following circumstances:
- Where there were reasonable grounds to believe an employee was impaired while on duty.
- Where an employee was directly involved in a workplace accident or significant incident.
- Where an employee returned to work after treatment for substance abuse.
In 2012, Suncor Energy was to begin a random drug and alcohol employee testing program, but a legal challenge from the Communications, Energy and Paperworkers Union of Canada, Local 707 took the issue to the Alberta Court of Appeal as a violation of human rights and an intrusion on workers’ privacy. The Alberta Court of Appeal agreed and granted an injunction and sent the case for arbitration.
In 2014, the court-ordered arbitration panel sided with the union. The majority of panel members ruled against Suncor, stating there was no evidence for an out-of-control drinking or drug culture at Suncor. As of 2014, Suncor Energy is appealing the arbitration panel ruling.
Although some of these job roles were considered bona fide occupational requirement, or safety-sensitive or safety-critical job functions, the courts often ruled in favour of the employees and not the employers. Due to the vagueness of the CRHC policy and lack of legislation in Canada, often the cases are ruled in favour of the employees’ human rights, which is why it is important to fully study the case law when developing your policies and consult with legal counsel where appropriate.
Strategy 3: Referencing Workplace Policies and Models Already in Place
There are some workplace policies and models in place that you can reference when developing your model/policy. In 1987, the USA passed a law for Drug-Free Workplace Programs, as mandated by Executive Order 12564 and Public Law 100-71. From this law, workplace policies and models were developed. As there is no Canadian law specifically passed in regards to workplace drug and alcohol testing, some associations have referenced the U.S. Department of Transportation (DOT) and Department of Health & Human Services (DHHS) models and further developed it to create their own drug testing programs.
Strategy 4: Tie It All Together
The ultimate goal in implementing a drug and alcohol free workplace is to protect the health and wellness of all employees. Where implementing a policy/model has been successful in the past, there has always been a collaborative effort between employers and unions. In order to better the success rate of any new policy, it is advisable to duplicate what has worked in the past. When working towards a drug and alcohol free workplace, employers should work with unions, seek legal counsel where necessary, and provide support programs for employees that are dependent users of drugs and alcohol.