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While employers have a positive obligation to create a safe workplace for employees, addressing this concern through the implementation of drug and alcohol testing policies can raise significant human rights issues. Specifically, drug and alcohol testing is not always permissible, and being subject to these tests may provide employees with grounds to pursue a legal claim against their employer, including in relation to discrimination based on addiction or perceived addiction.

Accordingly, we will review some factors that should be considered when implementing mandatory drug and alcohol tests, as well as workplaces that are generally permitted to implement these types of policies.

Drug Testing And Human Rights

The Ontario Human Rights Code prohibits discrimination against individuals with disabilities (or perceived disabilities) in the workplace, including in relation to drug and alcohol addictions. As a result, policies that require drug and alcohol tests for employees may give rise to significant human rights concerns, particularly if a positive drug and/or alcohol test leads to a negative impact for that employee.

Negative impacts include, but are not limited to, conditions placed on that employee’s job, failure of the employer to accommodate the disability, failure of the employer to respect the employee’s confidentiality during or after the testing process or discipline or termination as a result of a positive drug and/or alcohol test.

These negative impacts, however, must be balanced with an employer’s obligation to ensure safety in the workplace, as well as safety to the public where the workplace provides public services.

Drug Testing Policies In The Workplace

Policies mandating tests for drugs and alcohol may be used in the following instances:

  • In the pre-employment stage;
  • Randomly (i.e., periodically done over the course of employment);
  • In the event of reasonable cause;
  • Post-incident; and
  • Post-reinstatement scenarios.

However, when implementing a random drug and alcohol testing policy, employers should consider the following:

  • Whether there is a justifiable and compelling reason for testing; and
  • Whether the policy includes measures for accommodation.

Reasonable Cause

Pre-employment drug tests, or drug tests that are done periodically over the course of an individual’s employment, are generally seen as extremely intrusive to an employee’s right to privacy, and as such, have been severely restricted by the courts and human rights tribunals. Drug and alcohol testing policies may be justified if an employer can prove that the testing is a bona fide or legitimate requirement of the job, such as where testing is necessary to achieve safety, for example.

While the goal of implementing drug and alcohol testing policies should be to measure impairment, rather than a general deterrent, testing to ascertain impairment will generally only be justified as a bona fide requirement where a reasonable connection to the job can be demonstrated.

Accommodation

When implementing random drug and alcohol testing policies, employers have a duty to accommodate employees who may have dependency issues pertaining to substance abuse. As such, employers should ensure that a positive test does not result in automatic termination, and instead review on a case-by-case basis whether the employee has a dependency issue or is a recreational user.

If a dependency issue arises, employers should provide a process for employers to obtain treatment and request appropriate accommodation to return to the workplace.

Random drug and alcohol testing policies should be a part of a broader substance abuse policy that incorporates education, counselling, and rehabilitation.

Is a Random Drug Testing Policy Permitted in All Workplaces?

Generally, no.

On-the-job testing has, historically, only been deemed reasonable in safety-sensitive workplaces, and in very limited circumstances. In 2013, the Supreme Court of Canada, in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd, outlined that random alcohol testing can be conducted for safety-sensitive positions only if the employer can establish the following:

  • That the workplace is inherently dangerous; and
  • That there is evidence of a substantial substance abuse problem in the workplace that presents an enhanced safety risk.

Contact Sultan Lawyers in Toronto for Guidance on Drug and Alcohol Testing in the Workplace

If you have questions about the potential human rights implications of drug or alcohol testing policies in your workplace or would like to implement random drug or alcohol testing in your workplace, we encourage you to reach out to us to discuss your options. Please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or khayward@sultanlawyers.com.


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