Canada: Drug And Alcohol Testing In The Workplace

Last Updated: September 7 2007

Article by Brian Thiessen, © 2007, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Labour and Employment, August 2007

Canadian employers are in a new era of comprehensive risk assessment and risk management. Increasingly, occupational health and safety issues are among the priorities in the workplace. It is not surprising then that mandatory drug and alcohol testing programs are the subject of both controversy and recent jurisprudence.

Even within the large body of case law which addresses drug and alcohol testing in the workplace, two different approaches have evolved. Western Canadian case law has generally permitted broader drug and alcohol testing programs in workplaces that are safety-sensitive. A narrower approach has been forged by Ontario cases. With this divide, four key decisions provide guidance on the rights and obligations of an employer that chooses to implement a drug and alcohol testing policy. In addition, a recent decision of an Alberta labour arbitration panel adds further clarity to the human rights, and occupational health and safety issues in developing a policy.

Entrop Decision

In Entrop, an Ontario court held random, blanket drug testing of employees or prospective employees is, on its face, discriminatory, even for safety-sensitive positions, since it does not reflect actual or future job impairment. The case law distinguishes between drug testing and alcohol testing since a positive breathalyzer test for alcohol shows a current impairment and, therefore, is acceptable testing for safety-sensitive positions.

By contrast, drug testing does not demonstrate current impairment, but past usage and is, therefore, not acceptable. The case law indicates that a requirement of disclosure of past substance abuse is acceptable only if the problems occurred within six years of the disclosure date. However, automatic dismissal upon disclosure of such a history by a current employee or refusal to hire a prospective employee is unacceptable.

Entrop held pre-employment drug testing or random drug testing, even for safety-sensitive positions, is a violation of human rights law since it cannot assess actual or potential future impairment on the job. Tests should be given only when there is reasonable cause to suspect the employee will be impaired in performing job duties safely and satisfactorily. Tests should be part of a larger drug assessment program.

Milazzo Decision

By contrast, Milazzo held pre-employment and random drug testing of bus drivers was a "legitimate way to promote road safety", and was reasonable and necessary in this case. The Canadian Human Rights Commission in Milazzo found that Autocar was distinguished from other employers because:

  1. It presented evidence that drug use by drivers in the transportation industry was a real problem with significant implications for public safety.
  2. Bus drivers spend significant time on the road without supervision, with no way to detect drug and alcohol abuse.
  3. The workforce is seasonal and transient.
  4. The policy is required by U.S. mandatory drug testing legislation, which imposes fines on companies that allow drivers to drive without being tested.

The tribunal, however, found that employers are not automatically entitled to terminate employment or withdraw offers without first considering if accommodation is possible. From the decision in Milazzo, it can be discerned that the pre-employment and random drug testing of employees would have been justified had the employer accommodated those employees and prospective employees who failed drug tests.

It is important to note that an individual found to have a drug or alcohol addiction must be accommodated by the employer in the workplace, unless the employer can demonstrate it is not possible without causing undue hardship.

Employees who hold safety-sensitive positions may be randomly tested for alcohol use because a positive breathalyzer can measure current impairment on the job. The testing should be part of a larger assessment program to determine the employee’s alcohol use or abuse. However, alcohol addiction triggers a duty to accommodate on the part of the employer to the point of undue hardship.

Meiorin Decision

Bona fide occupational requirement (BFOR) is a common defence raised by employers against allegations of employment discrimination based on drug or alcohol testing policies. In the Meiorin decision, the Supreme Court of Canada set out what is now the accepted test for determining if an employer has established a BFOR and satisfied the duty of accommodation to the point of undue hardship:

  1. Did the employer adopt the policy or standard for a purpose rationally connected to the performance of the job?
  2. Did the employer adopt it in an honest and good faith belief that it was necessary to the fulfillment of that legitimate, work-related purpose?
  3. Is the policy or standard reasonably necessary to accomplish that legitimate, work-related purpose?

An employer must show the policy or standard adopted is the least discriminatory way to achieve the purpose or goal of the testing policy or standard. The employer must demonstrate it is impossible to accommodate individual employees without imposing undue hardship on the employer. Accommodation to the point of undue hardship requires the employer show:

  1. The cost of accommodation would substantially alter the nature and affect the viability of the enterprise, or
  2. Notwithstanding the accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.

Chiasson Decision

In Chiasson, the Alberta Court of Queen’s Bench applied the Entrop decision and found mandatory pre-employment testing was prima facie discriminatory against people who are drug dependent, because it denied them employment contrary to the Alberta Human Rights, Citizenship and Multiculturalism Act. The court also rejected a human rights panel finding, based on the complainant’s evidence, that because he was a recreational user of cannabis, his use was a matter of personal voluntary choice and not a disability.

The court referred to both Entrop and to a Québec decision, Boisbriand, and adopted the approach in Entrop, finding that anyone testing positive under the employer’s policy is entitled to the Act’s protection. The court adopted reasoning from Entrop to the effect that the Human Rights legislation protects those who have or had an actual or perceived disability, such that an employer can discriminate against an employee because of a perceived disability through the operation of a drug testing policy that denies employment to individuals who test positive on drug tests.

Therefore, even with respect to recreational users, the employer’s policy was prima facie discriminatory as it imposed a pre-employment barrier with zero tolerance and no accommodation. The Alberta court went on to find in Chiasson that the pre-employment drug testing policy did not pass the third arm of the Meiorin test, that is, the policy or standard was not reasonably necessary to accomplish a legitimate, work-related purpose.

The court found pre-employment urine tests do not test for likely impairment at work and, to the extent they may provide some information about the risk of such impairment, there are much more direct, effective, efficient and individual methods for employers to monitor impairment at work. Chiasson also found the employer failed to demonstrate compliance with procedural or substantive components of the duty to accommodate. The court stated that, given the absence of accommodation, the employer has failed to justify its policy or the treatment of Mr. Chiasson.

The court does provide some suggestion as to how a pre-employment drug policy could be properly framed within a comprehensive drug and alcohol policy. Accordingly, it is possible that pre-employment drug and alcohol testing in certain circumstances may be reasonably necessary (in unique safety-sensitive circumstances, such as those found in Milazzo) and, if administered properly (as outlined by the court in Chiasson), the employer might meet their duty to accommodate to the point of undue hardship. However, Chiasson ruled pre-employment drug testing was discriminatory on its face and not reasonably necessary. Therefore, the court ordered the employer to immediately cease its contravention of the Act by revising its drug and alcohol testing policy.

Impact of Chiasson: The Bantrel Panel Decision

Chiasson has recently been considered by an Alberta labour arbitration panel in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local #488 et al. v. Bantrel Constructors Co. (Bantrel).

This case was not about post-incident or reasonable cause testing, it was an example of a universal policy applied to all workers who would work or had been working at a Petro-Canada site. To continue its contract, Bantrel adopted and implemented Petro-Canada’s policy. Unions grieved.

The panel applied the three-part test set out in Meiorin and found the impugned policy satisfied all three inquiries. First, Bantrel adopted the policy to reduce the risk of having an impaired employee onsite and to improve safety. Second, pre-access testing of all employees was necessary to reduce the risk of impairment on the job site and to improve safety. Finally, the panel distinguished the case before it from the case in Chiasson to find the policy was reasonably necessary to accomplish a reduction in the risk of impairment on the job site (Chiasson had not reached that conclusion). In particular, the panel raised four points distinguishing Bantrel from Chiasson:

  1. Automatic termination. In Bantrel, unlike Chiasson, the policy did not provide for automatic termination where a drug test had been failed.
  2. Other means. The panel, unlike Chiasson, found detection of impairment through visual and other observations by supervisors was unreliable and, given the nature and purpose of the testing (i.e., a positive test led to additional and full assessments of the individual), the testing by Bantrel was reliable, inexpensive and easy to use.
  3. Other measures. Unlike the policy reviewed in Chiasson, Bantrel’s policy involved fair warnings to employees and the presentation of information about the rate of elimination of drugs from an individual’s system.
  4. Evidence. The evidence satisfied the panel that Bantrel had chosen a testing policy that operates in conjunction with an assessment and counselling regime, thereby meeting its burden under the Meiorin test.


There are different types of substance testing and implications for each, as follows:

Pre-employment Testing. The law of pre-employment drug and alcohol testing is yet to be fully reconciled. However, the Chiasson decision will be before the Alberta Court of Appeal in the fall of 2007. For the moment, support for pre-employment drug and alcohol testing will rest with an employer’s ability to satisfy the third requirement of the Meiorin test, and there is case law to the effect that such testing fails the reasonable necessity portion of that test.

Nevertheless, in certain unique safety-sensitive circumstances, pre-employment drug testing may be found to be reasonably necessary, as it was in Milazzo. Therefore, employers should be extremely cautious before adopting such policies, and ensure they consider whether they pass the reasonable necessity test given their unique circumstances, and they have appropriate procedures and policies in place to accommodate the employee to the point of undue hardship if they fail the pre-employment drug or alcohol test.

Random Testing. Random drug testing cannot measure present impairment and, therefore, cannot be shown to be reasonably necessary to accomplish the goal of ensuring workers are not impaired by drugs. In Milazzo, however, the tribunal found random drug testing raised a "red flag" that helps identify drivers who have a higher risk of accident.

Random alcohol testing of employees in safety-sensitive positions may be permissible. Random testing of an employee in a non safety-sensitive position is generally not acceptable. The case law in this area is relatively unsettled. If a policy drafted by an employer was specific enough to cover drug and alcohol testing of employees in non-safety roles for the purpose of reducing overall substance abuse problems in a small community, it may be acceptable in some cases.

Post-Incident Testing. Post-incident or "reasonable cause" testing for either alcohol or drugs, in a safety-sensitive environment, may be acceptable in specific circumstances. Reasonable cause and post-incident drug and alcohol testing of employees in non safety-sensitive positions has not been an issue that has been before the courts. If an employer could establish a BFOR, and there was no other way to ensure accomplishment of overall workplace safety, then the employer might pass the reasonable necessity arm of the Meiorin test.

Post-Reinstatement (Rehabilitation) Testing. Rehabilitation testing is an option tied into an employer’s attempt to accommodate employees with a disability, and may be incorporated into a rehabilitation program. Rehabilitation testing would still have to pass the BFOR requirements outlined above from the Meiorin test. The case law has held it is important to maintain a policy that can be clearly understood by employees and is clear in its goals and methods for limiting workplace substance abuse. This is useful in meeting the "good faith" criteria for a BFOR. A policy that is flexible in accommodating substance use problems of the individual employee is also more likely to be supported by the courts.

Privacy. Finally, federal and provincial privacy law statutes address the issue of collection, use and disclosure of personal information. Personal information is broadly defined to include information about an identifiable individual. It is important for employers to consider that once they have conducted testing, they will be in possession of personal information and will have to maintain compliance with privacy legislation.

Test results should be kept confidential and maintained in strict security with access granted only to company employees who need to have access to the information as part of their employment duties. Employees also have a right to access their own personal information on request and ensure correction if records of the company are inaccurate.


Case law points to the following steps and recommendations before implementing a drug and alcohol testing policy.

Consider the need for testing. The case law does not support testing for frivolous reasons and under no circumstances will testing to improve or gauge productivity be justified. Be prepared to establish that freedom from impairment is a necessary component of the job or work site. Establishing that those positions subject to such testing are safety-sensitive is also helpful, but not determinative of a right to test.

Disclosure. Ensure your organization discloses pre-employment drug and alcohol testing to all prospective employees as soon as possible, preferably in the job advertisement. Warn prospective employees a positive result will automatically be followed by a second test. If it’s part of a site access program, ensure all contractors realize and inform their employees your organization has implemented a pre-site access testing program and positive results will automatically be followed by a second test. Also, provide information regarding the rate of elimination of drugs from employees’ system and additional treatment information.

Comprehensive policy. Develop a comprehensive policy that addresses the reasons for testing, provides employees with notice of testing, and aims to assist employees who have dependencies to rehabilitate themselves. Such policies should avoid automatic termination in the face of a failed test.

Probationary period. For employees medically determined to be at a low risk for substance dependency (recreational users, and those whose second test is negative or have a negative follow-up assessment), there should be enhanced supervision by drug-awareness trained supervisors and mandatory participation in random (saliva) impairment testing for a probationary period.

Withdrawal of offer of employment. For employees who admit to or are medically assessed to be at high risk for substance dependency, the offer should be withdrawn, subject to allowance for re-application and consideration, if the employee voluntarily enters and successfully completes a recognized substance abuse treatment program at the employees’ expense.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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