Think you can test drugged-up employees? Think again…

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You want to get the best from your employees and common sense would suggest this isn’t going to happen when they’re under the influence of drugs or alcohol. So why is it usually illegal to test people?

Drug or alcohol addiction is considered a disability, and is protected from discrimination under the Canadian Human Rights Act. It’s illegal to require pre-employment testing, random drug testing and random alcohol testing except in “safety-sensitive” positions. If an employer can show sobriety as a “bona fide occupational requirement” they can require random alcohol testing of employees in safety-sensitive positions. However, they still can’t test for drugs.

The Human Rights Commission says the main difference between random alcohol testing and random drug testing is that alcohol tests can measure actual impairment, whereas drug testing detects the presence of drugs, but not when they were taken and whether they are still affecting an employee.

In 2004, Petro-Canada gave employees at an Alberta site two months’ notice for drug testing, and workers who failed were laid off. The arbitrator found this was reasonable.

Other acceptable drug-testing scenarios include:
 

  • Drug or alcohol testing for "reasonable cause" or "post-accident," provided that testing is a part of a broader program of medical assessment, monitoring and support.
     
  • Periodic or random testing following disclosure of a current drug or alcohol dependency or abuse problem may be acceptable if tailored to individual circumstances and as part of a broader program of monitoring and support.
     
  • Mandatory disclosure of present or past drug or alcohol dependency or abuse may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures.
     

However, even in these cases employees who test positive must be “accommodated to the point of undue hardship”.

Vancouver lawyer Gabriel Somen says impairment tests can be an acceptable alternative if drug use is suspected because there are fewer legal barriers, and it links directly to the goal of having safer workplaces and preventing accidents. It can also apply towards reasonable cause for drug testing.
 

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