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Posts tagged: drug and alcohol testing

Can my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

How to Get Away with Drug and Alcohol Testing in the Workplace

By , May 5, 2016 9:00 am

The federal government has announced that there will be marijuana legislation in place by next spring, which should fulfill a campaign promise to legalize marijuana. Marijuana would no longer only be legal for medicinal purposes, but also recreationally. Federal Health Minister Jane Philpott has said that “[w]hile this plan challenges the status quo in many countries, we are convinced it is the best way to protect our youth while enhancing public safety.” So what does this mean for employers? Some may be concerned about employees being impaired by marijuana during working hours.

It seems to be a concern that is on the mind of the TTC as the TTC Board has approved a random alcohol and drug testing policy. This policy is opposed by the Union and we expect the Union will grieve this policy under the applicable collective agreement.

As an employer, if you are considering implementing a random alcohol and drug testing, you should know that except in exceptional circumstances such a policy is generally illegal in Canada. In order for a random testing policy to be acceptable, an employer must show:

  • It is a safety sensitive workplace;
  • There is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace;
  • Other measures to deter substance abuse have failed; and
  • Testing must assess current impairment

Accordingly, an employer has the burden of meeting a very high evidentiary threshold that is extremely difficult to do. The Courts have stated that the unless an employer can show that there is a pervasive drug problem affecting safety that random testing is generally too invasive and harmful to an employee’s privacy rights; the potential harm outweighs the potential good.

However, an employer can generally have a drug and alcohol policy that requires an employee to submit to drug and/or alcohol testing following a significant incident, accident, or near miss, where it is important to identify the root cause of what occurred. In addition, random drug and/or alcohol testing is generally permissible as part of an employee’s rehabilitation plan provided that it is for a specific duration – typically not longer than two years.

 Lessons for Employers

  1. If you have a safety sensitive work environment, you may want to have a drug and alcohol testing policy that allows for testing after a significant incident, accident, or near miss.
  2. Keep in mind that as employer, you have a duty to accommodate employees with substance abuse problems to the point of undue hardship.  If someone tests positive after an incident, accident or near miss, then you need to consider whether there is a substance abuse problem, which would be considered a disability under human rights legislation.
  3. It is unlikely that a random drug and alcohol testing policy will be permissible unless you can show a persistent drug problem in the workplace which can be tied to safety concerns in the workplace.

If you would like to speak to one of our lawyers about a current drug and alcohol policy or implementing such a policy, please contact us at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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