Testing for Marijuana, Drug and Alcohol Use in Canadian Workplaces

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:

  1. Testing before employment
  2. Testing on suspicion of impairment
  3. Post-incident testing,
  4. Testing as part of a rehabilitation plan
  5. 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

Post-Incident Testing

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.

Which Notes are Better? Hand-Written or Electronic?

Virtually every student takes notes in class and, thanks to laptops, it’s easier than ever. By a certain age, students require laptops for many courses anyway, so they are already carrying their “notepad” with them. Notes can be typed and instantly saved, e-mailed to others, and very easily copied, backed up, and printed. We haven’t yet mentioned tablets and smartphones, which are even smaller and easier to carry around.

Sounds perfect. So what’s the problem? Well, some are arguing that old-fashioned note taking is better because you are more likely to retain what you’re copying down. Pam A. Mueller of Princeton University and Daniel M. Oppenheimer of the University of California, Los Angeles published a study in Psychology Today that states while typing allows you to write faster (and thus, a greater volume), the more selective act of handwriting means you are more likely to record things that will stay in memory. Using that manner of thinking, students have less to work from, but it is of more value to their memory than the longer typed notes. That also means less to pour over when studying, which can save time.

“The Pen Is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking” also had some other interesting conclusions. In the authors’ study, they found that students using the two types of note taking scored about equal when it came to remembering info such as dates. However, those using pen and paper were more effective in their ability to answer conceptual questions. Following other tests, they came to a rather startling conclusion: the more notes the laptop users took, the worse they did compared to the old school writers.

The results also suggested that those writing notes unconsciously reframed the words in a manner that made them easier to recall. That mental shorthand seems to be the key element that produces superior results.