The Ontario Human Rights Commission has released a revised version of their drug and alcohol testing policy, this revision provides employers updated information concerning the legality of implementing or maintaining drug and alcohol testing programs. As the policy mainly focuses on drug and alcohol testing from a human rights context it speaks to the responsibility of employers to ensure that programs they have in place are not in violation of the employee’s rights. The policy speaks at length on the issue of testing being executed with the intent of measuring impairment versus testing executed as a measurement of morality.
Addiction as Disability
The policy covers discrimination at length sending an informative and cautionary message to employers to be vigilant when implementing testing programs. The policy states that addicts are to be considered peoples with disabilities, which means that employers need to be aware what circumstances are required for someone to be considered an addict.
“[Addiction is] a primary, chronic disease, characterized by impaired control over the use of a psychoactive substance and/or behaviour….Like other chronic diseases,it can be progressive, relapsing and fatal.”
This means that if an employee is an addict it is the employer’s responsibility to accommodate them under the law like any other employee with a disability.
The document also provided information concerning the various situations that may occur in drug and alcohol testing programs and the various factors to be considered in handling them. Pre-employment testing for safety sensitive positions is recommended to be a part of a larger screening process in hiring employees, pre-employment testing still requires the employer to accommodate those who are considered disabled and to consider that the results may not indicate that impairment will take place in the workplace.
Post-incident/reasonable cause testing was also covered in the policy with OHRC citing the need for objective evidence which has been observed to constitute reasonable grounds for testing. Evidence could be such things as impaired behaviour, or witnessing consumption of substance, in the workplace.
“Common features [of an addict] are change in mood, relief from negative emotions, provision of pleasure, preoccupation with the use of substance(s) or ritualistic behaviour(s); and continued use of the substance(s) and/or engagement in behaviour(s) despite adverse physical, psychological and/or social consequences.”
Random drug testing has been controversial and is discussed in depth in this policy. The legality of random drug testing is controversial due to concerns over the privacy rights of the employees. The OHRC policy states that “random alcohol testing is acceptable in safety-sensitive positions, but only where staff supervision is minimal or non-existent, there is evidence of risk in the particular workplace, and the employer meets its duty to accommodate the needs of people with addictions who test positive”.
Proper Testing Procedures
The policy provides employers a guide which indicates the proper way to handle testing and the results of those tests. The policy states that employers must inform their employees (or prospective employees) when drug and alcohol testing is a requirement for the job. The policy notes that qualified personnel should be administering drug tests to ensure that the correct procedure is followed, and to ensure that the tests are analysed at a reputable laboratory. DATAC offers training for the collection and handling of drug and alcohol testing utilizing Canadian Drug Testing Standards (CDTS) which were created informed by the U.S. Department of Transportation, Substance Abuse and Mental Health Administration guidelines, and industry professionals, with alterations to accommodate the legal and business climate in Canada. With DATAC training employers can ensure they are following appropriate protocols as per the guidelines set out by the OHRC’s policy.