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.
“I want to sincerely thank Sharaf Sultan and his team for their assistance. Right from the beginning, I knew they were extremely knowledgeable and hard working. I also had confidence that Sharaf and his team understood my perspective and that they were prepared to work hard to receive the best result possible. Sharaf and his team were always professional and diligent when providing legal services. He truly went above and beyond my expectations. The whole team provided honest and precise services and they managed to solve any problems that arose during my case. I would definitely work with them again!!”C. Bell
“Kristine Gorman of Sultan Lawyers was terrific in helping me get a Canadian work visa. Responsive, friendly, but mostly incredibly thorough and efficient, she was a life line for when I needed wise counsel and focused expertise.”D. Baum, Ph.D., D.Min. Management Consultant
“Sultan Lawyers provided a great experience during a difficult time with my employer. Kristine was extremely thorough and knowledgeable when reviewing and articulating the risks and details of my severance package. I am thankful for Kristine as her expertise enabled and empowered me to confidently make a decision on my options.”James V.
“I wholeheartedly endorse Sharaf and Alexandra for their employment expertise and their impressive level of client service. Not only was their legal counsel top-notch, but Sharaf helped me navigate the tricky emotional waters related to my matter in a healthy way. He saw the big picture and helped me toward the best possible outcome for me now and into the future. As a lawyer myself, I realised that the smartest thing I could do in my circumstances was to have excellent legal advice, and Sharaf and Alexandra went above my expectations. It was empowering to work with them, and I can't thank Sultan Lawyers enough!”N. Haras
I had an incredible experience working with the Sultan Lawyers team from start to finish. They were friendly and professional, and made me feel at ease with what I was going through. They provided me with some incredible advice, which resulted in a better outcome than I had expected. They also followed up with me to make sure everything was ok, which was a lovely touch, they really care about their clients. I also felt like the service I received was incredibly affordable, and I would definitely recommend Sultan Lawyers to anyone, without hesitation.A. Kelly
Following the termination of your employment, you may wonder if the termination package offered to you is sufficient or if you may be entitled to more. In the absence of…
Canadian employers facing a labour or skills shortage may be permitted to hire a temporary foreign worker to fill the role if genuine efforts have been made to initially hire…
As employers implement mandatory vaccination policies, many employees are wondering whether they are obliged to comply with such policies and what repercussions they may legally face if they do not.…