The recent Supreme Court of Canada decision about random
alcohol testing has received a lot of attention, for good reason.
Now seems to be a good time to review where we are and what
employers must do if they want to have an effective drug and
As noted in
earlier commentary on the Irving Pulp decision, the matter of
drug and alcohol testing has been evolving for some years, and that
is likely to continue as different facts generate different
concerns. In the meantime, employers have interests and
obligations that demand the implementation of effective drug and
Here are a few general principles to keep in mind:
The overarching goal – on paper and in reality –
must be a safe and productive workplace and a healthy
Testing can be an important component of the policy, but as a
tool to achieve the goal, not an end in itself.
The possibility of drug or alcohol dependence must be
recognized, addressed and accommodated.
The policy must be clear and consistent, with sufficient
flexibility and discretion to adapt to all circumstances.
Flexibility and discretion requires that all employees, and
especially supervisors and managers, are well trained, and
regularly refreshed, in how to administer the policy.
Supervisors and managers in particular must be trained and
supported in how to respond to situations that arise at work,
including immediate mitigation of safety risks and simple
investigation and evidence gathering methods.
With respect to testing:
Recognize the significant privacy interests of individuals
which must be weighed against safety and production interests.
Recognize the limits of current drug testing techniques –
in particular the challenge of identifying current impairment as
opposed to past use.
Ensure that any testing is "reasonable" in all the
If you are going to review your current drug and alcohol
policies and procedures, you may wish to look back at
earlier posts we have done and also at the joint union/management policy in the BC
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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