Last week, we discussed various options for accommodations that employers can consider for employees with substance dependence-related disabilities. We then delved into general rules around drug and alcohol testing of employees and briefly outlined some differences between drug and alcohol tests. In the last part of our series on substance addictions at work, we will touch on whether employers can conduct drug tests on specific employees, as well as random drug testing in the workplace. We’ll also cover some alternatives to drug and alcohol testing and highlight the human rights issues at play when it comes to the subject of employee substance use.
Drug & Alcohol Testing of a Specific Employee
Due to concerns over potential intrusion on privacy and human rights issues, drug and alcohol testing is generally justified in Canada where employees are in safety-sensitive positions and one of the following situations applies:
- There is reasonable cause to suspect the employee may be impaired (e.g. the employee has been in a near accident, has been observed to consume alcohol at the workplace, smells of drugs or alcohol, etc.);
- The employee was involved in an accident (not due to mechanical issues, environmental factors, etc.); or
- Testing is a component of the employee’s return to work agreement for substance dependence disability and the employee occupies a safety-sensitive position.
Random Drug & Alcohol Testing
Canada has fairly stringent laws regarding random drug and alcohol testing of employees (especially existing employees). Such testing is generally only permissible for employees working in safety-sensitive positions and in workplaces where there are clearly demonstrated and widespread problems of alcohol or drug abuse. If there are less intrusive options to mitigate these problems, random testing may not be justified.
An example of random drug and alcohol testing on a large scale can be found with various companies operating in Fort McMurray, home to the Alberta oil sands. This urban service area is home to tens of thousands of fly-in, fly-out oil patch workers who, in addition to working long hours doing physically demanding and stressful work, are spending significant amounts of time away from more stable home-life environments and surrounded by others who are experiencing the same. Many workers have fallen into the trap of recreational drug and alcohol use which, for some, rapidly spirals into addiction. Some oil and natural gas companies in the region have, as a result, policies for random testing of employees.
Alternatives to Drug and Alcohol Testing
Because drug and alcohol testing is considered to be medical testing, therefore raising potential human rights and privacy issues (as well as possible collective agreement and regulatory requirements, depending on the context), the Canadian Human Rights Commission recommends that employers should consider less intrusive options first, such as face-to-face interactions and direct supervision.
Human Rights Issues
The Ontario Human Rights Code protects employees who are perceived to have an addiction to substances, even if they are only recreational drug or alcohol users.
A drug and alcohol testing policy may be held to be discriminatory if the employer, believing an employee has an addiction, imposes a negative consequence on an employee because of this. If the policy treats an employee as though they have an addiction, which results in negative consequences, the policy may also be discriminatory. For instance, if the employee, after testing positive, is individually assessed and found to only be a casual user of substances rather than a person with an addiction, the employer should ensure that any sanctions are proportional and appropriate to the circumstances. Consequences that are too harsh may be perceived as evidence that the policy treats the employee as though they have a disability.
This is not to say that employers cannot make reasonable and good faith inquiries into whether a disability exists, but employers should be wary of acting on the basis of stereotypes and moral judgment.
Before implementing any drug and alcohol testing policy in the workplace, you should consult a lawyer.
This blog concludes our workplace substance dependence series. If you have questions about substance dependence in the workplace, get in touch for a consultation!