For many reasons, any employer seeking to implement a drug and alcohol policy should seek advice from counsel in order to ensure as little liability as possible.

There is no Canadian legislation dealing specifically with alcohol and drug testing of employees either mandating it or prohibiting it. There has been no decision from the Supreme Court of Canada addressing the question and decisions from lower courts and administrative tribunals have varied. As a result, there remains some level of uncertainty in the Canadian legal environment concerning company drug and alcohol testing programs.

Under Canadian and provincial human rights legislation, alcohol and drug testing might be considered to be a discriminatory practice on the ground of disability/handicap. The Canadian and Ontario Human Rights Commissions have stated that a blanket policy of mandatory testing represents a major invasion of privacy in the employment field, and further, any employee who has been disciplined for testing positive in a drug or alcohol test may file a complaint with the Commission alleging discrimination on the basis of disability or perceived disability.

Under Canadian and provincial human rights legislation, an employer has a defense to an allegation of discriminatory practice if they can show that the practice is justified as a bona fide occupational requirement. Many employers, however, have found that meeting this burden is a difficult one.

By way of summary and assuming there were no legal limitations on conducting drug and alcohol tests, employers may wish to their employees at the following times:

• pre-employment, post offer;
• annually;
• randomly; and
• for cause, or where there has been an accident or an accident has nearly occurred.

Applying the current state of the law in Ontario to the four categories of testing most commonly proposed by employers, the following principles can be deduced:

• pre-employment: Post offer Testing for alcohol and drug use prior to commencing employment is generally unacceptable. That said, where drug or alcohol testing will be a valid requirement on the job (i.e. for safety sensitive positions), the employer should notify job applicants of the requirement at the time that an offer of employment is made. The circumstances under which such testing might be required (i.e. annually, randomly, for cause, accident or near miss) should be made clear to the applicant.
• annually:Annually testing all employees under a blanket policy for alcohol and drug use is generally unacceptable. However, where an employee is working in a safety sensitive position, the following exceptions may apply:
• Where the employee is working in a safety sensitive position and has disclosed a dependency or abuse problem, annual testing for drugs and alcohol may be acceptable; and
• Where the employee is working in a safety sensitive position, testing for alcohol use is generally acceptable.
• randomly: Randomly testing all employees under a blanket policy for alcohol and drug use is generally unacceptable. However, where an employee is working in a safety sensitive position, the following exceptions may apply:
• Where the employee is working in a safety sensitive position and has disclosed a dependency or abuse problem, random testing for drugs may be acceptable; and
• Where the employee is working in a safety sensitive position, random alcohol testing may be acceptable where the evidence has clearly established that an alcohol problem exists in the employer’s workplace.
• for cause, accident or near miss: Testing for alcohol and drug use may be conducted when there are reasonable grounds to believe that there is an underlying problem of substance abuse or where an accident or near miss has occurred due to impairment from drugs or alcohol, provided that testing is part of a broader program of medical assessment, monitoring and support.

The law is unclear whether testing under this category should be limited to just those employees working in safety sensitive positions.

What are the consequences?

Implementing a drug and alcohol use policy could have severe consequences. For example, if an employer decides to test its employees, it will be taking on the additional obligation to accommodate the employee that has tested positive to the point of undue hardship, taking into account the cost of the accommodation and health and safety concerns. This means that the employer is required to take individualized or personalized accommodation measures. Policies that result in the employees automatic loss of employment, reassignment, or that impose inflexible reinstatement conditions without regard for personal circumstances are unlikely to meet this requirement. Accommodation should include the necessary support to permit the employee to undergo treatment or a rehabilitation program, and consideration of sanctions less severe than dismissal. While one may assume that because a professional sports league has a drug and alcohol testing policy, a similar policy can be implemented in their industry. But it’s just not that easy and there are a lot of risks. For these reasons, any employer seeking to implement a drug and alcohol policy should seek advice from counsel in order to ensure as little liability as possible.

For more information, please follow the link for the Ontario Human Rights Policy on Drug and Alcohol Testing

Policy on Drug & Alcohol Testing