Pre-employment drug testing in Ontario is generally not
permissible; The Ontario Human Rights Commission ("OHRC')
has stated that: "Since drug testing cannot be shown to
actually measure impairment, pre-employment drug testing should not
be conducted. It is the OHRC's view that, in the absence of
clear medical research, pre-employment alcohol testing does not
appear to predict an employee's ability to perform the
essential requirements of a safety-sensitive position. All it can
do is assess impairment before the person is actually on the job.
It is therefore difficult to see how an employer could justify
pre-employment alcohol testing."
In order to justify drug testing, an employer must meet the
following three-part test:
The employer has adopted the standard or test for a purpose
that is rationally connected to the performance of the job;
The employer adopted the particular standard or test in an
honest and good faith belief that it was necessary to the
fulfillment of that legitimate work-related purpose; and
The standard or test is reasonably necessary to accomplish that
legitimate work-related purpose.1
As a result, only employees in "safety-sensitive"
positions may be tested for drugs. Drug testing should be limited
to determining actual impairment of an employee's ability to
perform or fulfill the essential duties or requirements of the job.
It should not be directed towards simply identifying the presence
of drugs or alcohol in the body. If the testing has no demonstrable
relationship to job safety and performance, then it is a violation
of the employee's human rights. Where drug testing will be a
valid requirement of the job, the employer should notify job
applicants at the time the offer of employment is made.
In most circumstances, drug testing is probably not worth the
risk of a human rights claim. Even if the employer meets the
threshold for drug testing, in the event that the test comes back
positive, the employer has accommodation duties. Unless the
accommodation would cause undue hardship upon the employer; this
duty requires the employer to work together with the employee
to permit the employee to work despite having a drug problem, and
the employer would have to make attempts to try to facilitate
1 Pre-Employment Testing for Drug and Alcohol Use as Part
of an Employment Related Medical Examination
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