Drug Testing in Canada – Part Two

Drug and Alcohol Testing: Employers’ Responsibilities

In addition to following the correct procedures and employee protections when establishing drug testing policies, employers must also accommodate any positive test results by individually assessing each employee that tests positive by providing addictions or disability support as needed, unless doing so causes the employer undue hardship.1

The Canadian Human Rights Act has defined drug and alcohol dependence as a disability, which means that any diagnosed employee has a right to accommodation by his or her employee, just as they would be accommodated with any other disability. Employers should create a respectful and inclusive workplace so that when dealing with the aftermath of positive test results, the needs of the employee in question are addressed on an individual basis, free from the stigma and discrimination which sometimes prevents drug and alcohol users from seeking treatment.2

Examples of accommodations may include:

  • Changing an employee’s schedule to accommodate treatment or meetings pertaining to their substance use,
  • Providing support via a sponsor or medical professional,
  • Post-medical assessment adjustments to work hours or performance expectations,
  • Employee allocation to a non safety-sensitive job within the company, especially when beginning treatment, and/or
  • Short or long term sick leave to accommodate any treatment recommendations made by medical professionals.3

Treatment Plans:

Treatment plans are not the same as accommodation plans, as they are unique, private plans made between an employee and his/her doctor in the event of a positive drug or alcohol test. An employer is obligated to respect the required treatment recommendations by the employee and medical professional and is obligated to ensure that the accommodation plan respects the parameters of the required treatment.

The employer is:

  • Not entitled to knowledge about the treatment plan discussed between the employee and the medical professional.

The employee is:

  • Only obligated to share enough information about his/her treatment plan with the employer so that the employer can effectively produce an accommodation plan, and
  • Expected to have different treatment needs that could change over time, in intensity, and duration.4

Independent Medical Evaluations (IME):

When an employee is assessed by a medical professional that is not their family doctor or specialist, this is called an Independent Medical Evaluation, or IME. This can be requested when an employer does not have clear medical information about the employee from the employee’s existing medical professional. The employer:

  • Should seek legal counsel before requesting an IME, since the process inherently infringes upon the employee’s privacy rights,
  • Only has access to the medical information they need to set up accommodations for the employee,
  • Should allow the employee to choose the medical professional from a list of options,
  • Should ensure that both parties agree to the medical results of the IME ahead of time,
  • Provide the employee with time off work for the assessment, and
  • Absorb the cost of the IME.5

Drug and Alcohol Testing: Refusing a Drug or Alcohol Test

Employees can refuse to be tested for drugs or alcohol, but that decision comes with some complications.

Refusal to Test:

No refusal on the part of the employee should lead to the assumption that the employee in question would test positive. Refusals should not result in suspension of the employee, but must be considered on an individual basis. Failure to do this could result in claims of discrimination based on perceived disability. No employee can be forced to undergo a medical examination.

Refusal of Accommodation:

An employer cannot dismiss an employee if they refuse the provided accommodation. The employer must produce evidence that they have provided progressive warnings to the employee, and that the employee is unable to perform in his/her job. Only after the employee has refused accommodation and the employer has imposed progressive discipline and performance management can dismissal occur.

Refusal to Follow Conditions upon Returning to Work:

Breaching a back-to-work agreement after a positive drug or alcohol test could result in the employee’s job being terminated; however, a contingency agreement does not relieve the employer from duty to accommodate an employee if a relapse of drug or alcohol use occurs, and if the drug or alcohol use is due to the employee’s disability.6

Undue Hardship:

An employer is obligated to accommodate employees to the point of undue hardship, or if the accommodation does not allow for the employee to perform his or her essential duties, or if the employee is repeatedly resistant to the accommodation process, regardless of the employer’s assistance.

Drug and Alcohol Testing: Employee Removal

An employee should only be removed from the workplace if:

  • They are clearly unable to meet the expectations and duties of his/her job,
  • There is sufficient medical information that supports the removal,
  • The employee has health needs that require immediate attention,
  • The employee’s presence seriously endangers the safety of others or themselves in the workplace,
  • The employer has obtained legal advice and contacted relevant agencies about removing the employee from the workplace, and
  • The employer has spoken directly to the employee about the removal.7

Drug and Alcohol Testing: The Effects of Bill C-45

With the advent of Bill C-45, the Cannabis Act introduced by Minister of Justice Jody Wilson-Raybould this past Spring, more attention is being paid to the consequences of legalizing marijuana, including the treatment of its use in regards to worksites across the country. According to the Human Rights Code, employers are obligated to accommodate the use of marijuana by those with disabilities as well as by those who use the drug medically – though this does not mean that tolerance of cannabis use or impairment on the jobsite is required.8

As a result of workplace accommodation, some employees may be using legalized marijuana to ease symptoms related to their disabilit(ies). In these cases, employers are obligated to take accommodation requests “in good faith,” though if the job site’s safety risks are too high, it may be a case of undue hardship to accommodate employees under the influence of medical marijuana in safety-sensitive jobs. If so, an employer could be responsible for finding these employees alternative non-safety-sensitive work assignments within the company.9

 

 

1.“Drug and Alcohol Testing – Frequently Asked Questions.” Ontario Human Rights Commission, www.ohrc.on.ca/en/drug-and-alcohol-testing-%E2%80%93-frequently-asked-questions.
2.Canadian Human Rights Commission. Impaired at Work: A Guide to Accommodating Substance Dependence. Minister of Public Works and Government Services, 2007, www.chrc-ccdp.gc.ca/sites/default/files/impaired_at_work.pdf.
3.Canadian Human Rights Commission. Impaired at Work: A Guide to Accommodating Substance Dependence. Minister of Public Works and Government Services, 2007, www.chrc-ccdp.gc.ca/sites/default/files/impaired_at_work.pdf.
4.Canadian Human Rights Commission. Impaired at Work: A Guide to Accommodating Substance Dependence. Minister of Public Works and Government Services, 2007, www.chrc-ccdp.gc.ca/sites/default/files/impaired_at_work.pdf.
5.Canadian Human Rights Commission. Impaired at Work: A Guide to Accommodating Substance Dependence. Minister of Public Works and Government Services, 2007, www.chrc-ccdp.gc.ca/sites/default/files/impaired_at_work.pdf.
6. “Drug and Alcohol Testing – Frequently Asked Questions.” Ontario Human Rights Commission, www.ohrc.on.ca/en/drug-and-alcohol-testing-%E2%80%93-frequently-asked-questions.
7.Canadian Human Rights Commission. Impaired at Work: A Guide to Accommodating Substance Dependence. Minister of Public Works and Government Services, 2007, www.chrc-ccdp.gc.ca/sites/default/files/impaired_at_work.pdf.
8.“Pot in the Workplace.” Employment & Human Rights Law in Canada, 2 Aug. 2017, www.canadaemploymenthumanrightslaw.com/2017/08/pot-in-the-workplace/.
9.“Drug and Alcohol Testing – Frequently Asked Questions.” Ontario Human Rights Commission, www.ohrc.on.ca/en/drug-and-alcohol-testing-%E2%80%93-frequently-asked-questions.

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