Another apparent distinction between US and Canadian employment
law is drug testing. Restrictions on drug testing in Canada
are a continuing source of frustration, especially for US employers
with operations in Canada.
Drug and alcohol testing in Canada has typically been restricted
to reasonable cause, post-incident or return to work from
rehabilitation scenarios. Pre-employment and random
testing have been prohibited almost universally.
Another important restriction flows from the limited ability of
drug testing to identify present impairment – obviously a
problem in the workplace – and past use, which may have
occurred on the employee's own time and which may no longer be
affecting the employee at work.
These restrictions have been seen as a key difference
between US and Canadian employment law, and have led to some
challenges for employers who operate in both of our closely
integrated economies. But it may be that Canada is moving a
little closer to the US as some of the blanket prohibitions are
giving way to more nuanced approaches in the right
Our courts and arbitrators are paying more attention to safety
sensitive workplaces and showing a preference for
prevention over response to an actual accident. (The
Irving Pulp & Paper case is a good example –
see in particular paras. 51 -57.) At the same time, unions
and industry are beginning to develop comprehensive protocols
that combine careful attention to privacy, human rights and
treatment for substance dependence with some
pre-employment/pre-site access and random testing.
(See this comment on a recent
initiative in Alberta and the program developed in the
Construction Industry in British Columbia.)
We also expect more movement as better forms of drug testing are
developed so that present impairment can be identified.
Any substance testing in Canada will have to be carefully
considered, but these are hopeful developments in striking a better
balance between individual privacy and human rights and the needs
and safety concerns of industry and other workers.
We suspect there are useful lessons for us from the US
experience and look to Jeff Polsky again for his insights.
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