What is Drug Testing?

Drug testing is a control method used by Canadian employers to prevent jobsite accidents resulting from alcohol or drug impairment, based on the belief that drug and alcohol use, both on and off the job, increases the chances of workplace accidents. Common testing methods include urinalysis, which assesses an employee’s urine for the presence of alcohol and drugs like marijuana, cocaine, opiates, and amphetamines. Breathalyzers are also used to test employees for alcohol use. Drug tests are sometimes administered as part of the hiring process, or randomly throughout the period of employment, or in the event of a job site accident.¹

How Common is Drug Testing in Canada?

Approximately 10% of Canadian worksites with more than 100 employees use drug testing within their companies, primarily for safety purposes.² Drug testing policies are usually only permitted within specific, safety-sensitive workplaces where drug or alcohol impairment poses direct and significant injury risks to the employee, other employees, or the environment.³

Canadian Drug Testing Laws

The collection of employees’ bodily fluids or breath samples is meant to detect any health or safety risks present in safety-sensitive jobs. Each case of drug testing within a company’s policy must be individually assessed, and it cannot be assumed that drug and alcohol testing infringes on the right to freedom from discrimination based on disability or perceived disability. However, checks and balances are put into place to prevent an infringement on employees’ rights; for example, if an Ontarian employee with an addiction is fired or not employed due to a positive drug or alcohol test, then the employer is required to use the Ontario Human Rights Commission’s three-step test to justify the testing of that employee. Furthermore, if an employer wishes to use random drug testing within its company, they must show evidence of highly dangerous, inherent risks in the workplace, as well as the heightened risk for accidents and mistakes. To conduct drug testing, an employer may also have to provide evidence of a drug and alcohol problem existing amongst its employees,⁴ and remember that drug tests are a form of medical examination and constitute an invasion of privacy, as well as that taking action without discussing addiction and dependence with the employee in question could pose infringements on  the Canadian Human Rights Act.⁵

Drug and Alcohol Testing: Employee Rights

There is currently no legislative regime in Canada that specifically governs drug and alcohol testing in the workplace, but according to the Ontario Human Rights Commission, in order for employers to implement drug and alcohol testing policies, they must follow the bona fide requirements laid out by the Supreme Court of Canada.

Policies should be:

• “Adopted for a purpose that is rationally connected to performing the job;
• Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose; and
• Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.”⁶

Furthermore, a drug and alcohol testing policy must both respect human rights and be justifiable under its province’s Human Rights Code. In Ontario, that means the policy:

• “Is based on a rational connection between the purpose of testing (minimizing the  risk of impairment to ensure safety) and job performance;
• Shows that testing is necessary to achieve workplace safety;
• Is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored;
• Is used only in limited circumstances, such as in for-cause, post-incident or post-reinstatement situations;
• Does not apply automatic consequences after positive tests;
• Does not conflate substance use with substance addiction;
• Is used as part of a larger assessment of drug or alcohol addiction (for example, employee assistance programs, drug education and awareness programs and a broader medical assessment by a professional or physician with expertise in substance use that provides a process for inquiring into possible disability);
• Provides individualized accommodation for people with addictions who test positive, to the point of undue hardship;
• Uses testing methods that are highly accurate, able to measure current impairment, are minimally intrusive and provide rapid results;
• Uses reputable procedures for analysis; and
• Ensures confidentiality of medical information and the dignity of the person throughout the process.”⁷

Stay tuned for Part Two Thursday – Drug and Alcohol Testing – Employers’ Responsibilities