There is greater scrutiny than ever surrounding substance use in the workplace. More and more Canadian employers are exploring the possibility of implementing testing for marijuana, drug and alcohol use, even though such testing is strictly regulated in this country.
The Ontario Human Rights Commission has published policy guidance on five drug and alcohol testing situations to help employers and workers navigate this complex legal landscape. The situations are:
- Testing before employment
- Testing on suspicion of impairment
- Post-incident testing,
- Testing as part of a rehabilitation plan
- Random testing
Here’s a brief on what the OHRC has to say about these scenarios.
Testing for Marijuana, Drug and Alcohol Use Before Employment
The Ontario Human Rights Commission takes the position that testing a person before they are hired, transferred or promoted into a position (or allowed to work on a job site as a contractor) is prohibited under subsection 23(2) of the Human Rights Code. Legal precedent doesn’t rule it out as an option, but it is generally not recommended.
Refusing to hire someone on the basis of addiction (or perceived addiction) is often considered prima facie discrimination – meaning it is discriminatory on its face. The OHRC recommends that employers should not automatically disqualify a candidate on the basis of a positive test result, and that testing should only be done as part of a larger qualifying process that includes other legitimate qualifications.
Additionally, employers must continue to meet their duty to accommodate people with addictions.
Testing on Suspicion of Impairment
In certain circumstances, employers can require employees to take a test based on reasonable grounds.
Reasonable grounds means the employer has objective evidence, like a specific behaviour observed, that a person may be impaired. Potential indicators include:
- Seeing someone use alcohol or drugs at work
- Someone acting in a way consistent with impairment
- Someone smelling like alcohol
- Finding substance paraphernalia in the employee’s work area
Testing shouldn’t be the go-to response to these indicators, however, and the OHRC recommends that employers consider other methods, such as:
- Allowing a chance to explain the behaviour
- Temporarily removing the worker from safety-sensitive positions
- Offering accommodation
- Progressive performance management
- Asking the worker to attend a medical assessment
Following an accident or report of dangerous behaviour resulting in a “near miss”, the employer will have a legitimate interest in testing the worker for drug or alcohol use. Post-incident testing should not be involved if it appears the accident resulted from external factors like a mechanical or structural failure; however, it may be considered if the employer assesses that the worker consumed a mind- or behaviour-altering substance that may have contributed.
Regardless, post-accident testing should only take place if it is necessary as part of a larger process of assessing drug or alcohol addiction, including broader medical assessment.
Testing as Part of Rehabilitation
When a worker comes back to work in a safety-sensitive job after being treated for alcohol or drug addiction, the employer may have grounds to conduct post-reinstatement testing.
This type of testing must be tailored to the person’s individual circumstances and the employer’s duty to accommodate.
Having a back-to-work plan that includes reinstatement testing does not negate the employer’s obligation to accommodate an employee if they have a relapse.
Random Drug Testing
Employers should only conduct random drug testing if they have established that there has been a link between impairment and performing job duties. This may be the case with employees in safety-sensitive positions.
Random drug testing is not automatically justified in a workplace with dangerous and safety-sensitive positions; the employer must also provide evidence of a general problem with substance abuse in that workplace leading to safety issues.
Even if drug or alcohol testing policies meet the requirements of the Human Rights Code, they are still liable to be challenged by workers based on privacy grounds.