Employers have a positive obligation to create a safe workplace for employees. A significant safety concern for some employers is drug and alcohol use by employees. Some employers seek to address this concern through implementing drug and alcohol testing. Employees whose employer seeks to implement such testing should be aware it can raise significant human rights concerns and might be discriminatory based on addiction or perceived addiction. As such, drug and alcohol testing is not always permissible, and being subject to such testing may provide employees with grounds for a legal claim against their employer.
The law around drug testing in the workplace is evolving, and with the pending changes to marijuana legislation, will continue to evolve. At Sultan Lawyers in Toronto, our knowledgeable employment lawyers have many years of experience advising employees on their rights at work, including on whether they might have to participate in drug or alcohol testing. We provide strategic, forward-thinking advice to help employees navigate workplace relationships.
Unlike in the U.S., pre-employment drug tests, or drug tests done periodically over the course of someone’s employment, are not common in Canada and are generally not permitted. Courts and human rights tribunals consider drug and alcohol testing to be extremely invasive and have ruled that such testing can only be done where an employer has “reasonable cause” to do so. Reasonable cause will vary depending on the circumstances, including the nature of the employment (for instance, whether the workplace is safety sensitive, such as a construction site).
Drug and alcohol testing may be justified if an employer can prove that the testing is a bona fide (i.e. a legitimate) requirement of the job (for example, where testing is necessary to achieve safety). The main reason for implementing drug and alcohol testing should be to measure impairment, rather than to be used as a deterrent, and testing to ascertain impairment will generally only be justified as a bona fide requirement where a reasonable connection to the job can be demonstrated (for instance, where an employee in a safety-sensitive position had an accident or narrowly avoided an accident). At the end of the day, a balance must be achieved between human rights, and workplace and public safety.
If you are an employee and have questions or concerns about drug testing in your workplace, contact the Toronto employment lawyers at Sultan Lawyers. We can help advise you on your rights at work, can help you understand whether your employer may be able to implement such testing, and can help you address and mitigate any potential human rights concerns that could arise if it is implemented.
Drug and alcohol addictions are considered disabilities under the Ontario Human Rights Code, which prohibits discrimination against individuals with disabilities (or perceived disabilities) in the workplace.
As a result, drug and alcohol testing of an employee will raise human rights concerns if a positive drug test leads to a negative impact for that employee. Negative impacts could include conditions placed on that employee’s job, discipline or termination, failure of the employer to accommodate the disability, or failure of the employer to respect the employee’s confidentiality during or after the testing process. Of course, this must be balanced with an employer’s obligation to ensure safety in the workplace, and, where the workplace provides public services, with safety to the public.
If you are an employee and have questions about potential human rights implications of drug or alcohol testing policies in your workplace, contact Sultan Lawyers. We can help you protect your rights at work, and help you maintain a positive working relationship with your employer.
At Sultan Lawyers we have helped hundreds of employees with their most challenging workplace and human rights issues. We provide tailored advice to ensure that our clients get clear, practical advice to help navigate their specific circumstances. Where needed, we will vigorously defend our clients’ rights in court or at tribunals. Contact us online or at 416-214-5111 for a consultation.
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