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
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.