Canada: Suspect Your Employee Is Using Drugs Or Drinking?

Last Updated: November 21 2011
Article by George Waggott and Lai-King Hum

The Toronto Transit Commission has received widespread publicity in recent weeks for its proposed adoption of drug and alcohol testing for transit operators. The relevant legal issues are significant. As an employer, if you suspect that an employee may be using drugs or drinking and performing duties while impaired, this is of great concern. Drug or alcohol abuse by an employee can endanger the safety of other employees, customers or the public and give rise to other potential liabilities.

Many Canadian employers are uncertain about the laws surrounding drug and alcohol tests for employees. Drug and alcohol testing is a challenging issue, and tests can only be used in limited circumstances. Applied improperly, the testing could easily lead to a contravention of applicable human rights laws. In this regard, it is important that all employers understand the laws surrounding drug and alcohol testing in Canada, and create policies and procedures that will withstand legal scrutiny.

requirements for drug and alcohol testing policy

Employers can justify the discriminatory effect of testing if the drug and alcohol testing policy meets all three of the following requirements1:

  • The policy must be adopted for a purpose that is rationally connected to the performance of the job (e.g. employee and public safety);
  • The policy must be adopted in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; and
  • The policy must be reasonably necessary to the accomplishment of that legitimate work-related purpose.2

Because of these requirements, testing should generally be limited to determining actual impairment of an employee's ability to perform their essential duties. In other words, testing cannot be used solely to identify the presence of drugs or alcohol in the body. Unlike alcohol testing, drug testing does not actually measure impairment – it only determines if drugs are present in the body. As such, drug testing is more controversial. Testing that has no demonstrable relationship to impairment, job safety or performance will be found to be a violation of an employee's rights. Perhaps just as importantly, many drug tests will be of no use in support of related efforts by the employer to discipline employees who fail such tests.

As this area of law is contentious and constantly evolving, the following principles will be applied differently depending upon the circumstances and, sometimes, the province. This bulletin focuses on applying these general principles to determine which employees can be tested and when employees can be tested.

which employees can be tested?

Blanket drug and alcohol testing is regarded as discriminatory since addiction is considered to be a disability under human rights laws. More significantly, drug testing does not reflect actual or future job impairment. Therefore, to test an employee for drugs or alcohol, there needs to be:

  • a rational connection between testing and the employee's job performance; and
  • risk to the safety of co-workers or members of the public created by an employee's alcohol or drug abuse.

As a result, typically only employees in "safety-sensitive" positions may be tested for alcohol or drugs.

when can an employee be tested?

There are two times when an employer may want to test an employee for drugs or alcohol: before hiring the employee and while the employee is working.

pre-employment testing

Pre-employment drug and alcohol testing is generally considered to be discriminatory and an unjustifiable intrusion into the rights of employees, regardless of whether or not the employee will occupy a safety-sensitive position. This is because such tests essentially deny employment to people who are drug or alcohol dependent and because such testing does not reflect actual or future job impairment. Pre-employment drug and alcohol testing may, however, be justifiable in some circumstances. For example, pre-employment testing may be allowed where there is evidence not only showing the link between impairment, job performance and safety, but also showing unique safety-sensitive circumstances (e.g. an "ultra-dangerous" workplace) or a significant risk or history of employees being impaired while at work3. Pre-employment drug and alcohol testing may also be acceptable if the potential employee is not refused employment because of a positive test, but is instead accommodated4.

on-the-job testing

There are three types of on-the-job drug and alcohol testing to be considered:

1. random testing;

2. "for cause" testing; and

3. post-incident testing.

random testing

Generally, random drug testing is considered to be an unjustifiable intrusion into the rights of employees, even if they occupy safety-sensitive positions. This is because drug testing does not reflect actual or future job impairment. As with pre-employment testing, however, random drug testing may be justifiable in extreme circumstances where there is evidence showing unique safety-sensitive circumstances or if there is a significant risk or history of employees being impaired while at work5.

Random alcohol testing, on the other hand, is considered to be a minimally intrusive and effective method of measuring impairment6. However, random alcohol testing can still only be used for employees in safety-sensitive positions, where there is a clear connection between impairment and the employee's performance and safety.

for cause and post-incident testing

"For cause" drug and alcohol testing is potentially permissible when there is reasonable cause to suspect alcohol or drug abuse. Post-incident testing is when an accident has occurred at work and there is reasonable cause to suspect that alcohol or drug abuse may have contributed to the accident. In both of these cases, such testing may be allowed so long as it forms part of a larger assessment of drug and alcohol use and so long as the employer is able to show that there is an objective basis to believe all of the following:

  • That job performance would be impaired by drug or alcohol dependency. In other words, that there is a rational connection between testing and job performance;
  • That the employee's behaviour or the incident is related to alcoholism or drug addiction or dependency; and
  • That the degree, nature, scope and probability of risk caused by alcohol or drug abuse or dependency will adversely affect the safety of co-workers or members of the public.

what if an employee tests positive?

Automatically terminating the employment of an employee who has tested positive for drugs or alcohol is an invitation for a human rights complaint.

If an employee tests positive for either drugs or alcohol, the sanction must be tailored to that employee's specific circumstances. Any proven employee dependency or addiction must be accommodated unless the employer can demonstrate that such accommodation will cause undue hardship. Therefore, an employer needs to consider both the applicable human rights legislation and the question of accommodation without undue hardship in order to help shield itself from a potential human rights claim.

Given the close scrutiny of employer drug and alcohol policies, and their controversial nature, employers are well advised to seek legal guidance on their creation and implementation. 

Footnotes

1 British Columbia (Public Service Employee Relations Commission) v BCGSEU (Meiorin), [1999] 3 SCR 3.

Entrop v. Imperial Oil Limited, 50 OR (3d) 18 (CA).

3.Milazzo v Autocar Connaisseur Inc. [2003] C.H.R.T. 37 [Milazzo] and Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp & Paper Limited, 2011 NBCA 58 [Irving].

4;Chiasson v. Kellogg Brown & Root (Canada) Co. (2005), 56 C.H.R.R. D/466, aff'd by Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 ABCA 426

5Milazzo and Irving supra note3.

6 Entrop supra note 2.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2011 McMillan LLP

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
George Waggott
Lai-King Hum
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions