The legalization of recreational cannabis on October 17, 2018, left many employers wondering if they can drug test their employees. Impairment from cannabis use is a safety risk, but for most employers, performing drug tests to manage the risk is not an option.
What is Drug Testing?
Drug testing is a control method used by Canadian employers to prevent jobsite accidents resulting from alcohol or drug impairment, based on the belief that drug and alcohol use, both on and off the job, increases the chances of workplace accidents. Common testing methods include urinalysis, which assesses an employee’s urine for the presence of alcohol and drugs like marijuana, cocaine, opiates, and amphetamines. Breathalyzers are also used to test employees for alcohol use. Drug tests are sometimes administered as part of the hiring process, or randomly throughout the period of employment, or in the event of a job site accident.
How Common is Drug Testing in Canada?
Approximately 10% of Canadian worksites with more than 100 employees use drug testing within their companies, primarily for safety purposes.2 Drug testing policies are usually only permitted within specific, safety-sensitive workplaces where drug or alcohol impairment poses direct and significant injury risks to the employee, other employees, or the environment.
Canadian Drug Testing Laws
The collection of employees’ bodily fluids or breath samples is meant to detect any health or safety risks present in safety-sensitive jobs. Each case of drug testing within a company’s policy must be individually assessed, and it cannot be assumed that drug and alcohol testing infringes on the right to freedom from discrimination based on disability or perceived disability. However, checks and balances are put into place to prevent an infringement on employees’ rights; for example, if an Ontarian employee with an addiction is fired or not employed due to a positive drug or alcohol test, then the employer is required to use the Ontario Human Rights Commission’s three-step test to justify the testing of that employee. Furthermore, if an employer wishes to use random drug testing within its company, they must show evidence of highly dangerous, inherent risks in the workplace, as well as the heightened risk for accidents and mistakes. To conduct drug testing, an employer may also have to provide evidence of a drug and alcohol problem existing amongst its employees, and remember that drug tests are a form of medical examination and constitute an invasion of privacy, as well as that taking action without discussing addiction and dependence with the employee in question could pose infringements on the Canadian Human Rights Act.
Drug and Alcohol Testing: Employee Rights
There is currently no legislative regime in Canada that specifically governs drug and alcohol testing in the workplace, but according to the Ontario Human Rights Commission, in order for employers to implement drug and alcohol testing policies, they must follow the bona fide requirements laid out by the Supreme Court of Canada.
Policies should be:
- “Adopted for a purpose that is rationally connected to performing the job;
- Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose; and
- Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.”
Furthermore, a drug and alcohol testing policy must both respect human rights and be justifiable under its province’s Human Rights Code. In Ontario, that means the policy:
- “Is based on a rational connection between the purpose of testing (minimizing the risk of impairment to ensure safety) and job performance;
- Shows that testing is necessary to achieve workplace safety;
- Is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored;
- Is used only in limited circumstances, such as in for-cause, post-incident or post-reinstatement situations;
- Does not apply automatic consequences after positive tests;
- Does not conflate substance use with substance addiction;
- Is used as part of a larger assessment of drug or alcohol addiction (for example, employee assistance programs, drug education and awareness programs and a broader medical assessment by a professional or physician with expertise in substance use that provides a process for inquiring into possible disability);
- Provides individualized accommodation for people with addictions who test positive, to the point of undue hardship;
- Uses testing methods that are highly accurate, able to measure current impairment, are minimally intrusive and provide rapid results;
- Uses reputable procedures for analysis; and
- Ensures confidentiality of medical information and the dignity of the person throughout the process.”
Can Employers Submit Employees to Drug Tests?
The short answer is no. For the most part, drug testing not only violates the Human Rights Code, but it is also a gross infringement on a worker’s reasonable right to protection of privacy.
Employers still need to fulfill their general duty under the Occupational Health and Safety Act (the Act) to keep workers safe from hazards, including those resulting from impairment. As such, it may be tempting to use drug testing as a means to ensuring that you’re fulfilling your general duty. However, in Canada, most workers are protected from drug testing. In many cases, employers may not test for drugs, including for the presence of recreational cannabis, alcohol, and other drugs – legal and illegal.
Employers have the right to expect employees to arrive at work fit for duty and remain that way throughout the duration of their shift. Communicating this expectation to workers is important and, at a minimum, should be communicated by implementing a Workplace Substance Management Policy that makes the employer’s expectations around impairment clear. This is especially important for employers that have safety-sensitive roles within their organizations.
When Drug Testing May Be Permissible
There are some circumstances in which drug testing is allowed, though they are rare and very specific.
1. Extremely dangerous workplaces: Universal random drug testing would only be acceptable in workplaces that can be shown to be extremely dangerous and where a worker’s impairment would likely result in catastrophe. For example, airline pilots.
2. Reasonable Suspicion of Impairment: If an employee appears to be obviously impaired, drug testing may be permissible, especially if they’re involved in an incident or near-miss. For example, if a lift truck operator is involved in a collision and there is reasonable suspicion that they are intoxicated, performing a drug test may be acceptable.
3. As part of a rehabilitation/return-to-work program: An employee with substance abuse disorder may be subject to random drug testing to be carried out as part of a rehabilitation program and return to work program. For example, it would be acceptable to drug test an employee that is returning to work from a leave where they were treated for addiction as part of an agreed-upon return to work program.
4. Evidence of reasonable cause: Drug or alcohol testing must be supported by evidence of reasonable cause. For example, evidence of a history of widespread alcohol or drug abuse in the workplace would be reasonable cause to subject employees to drug testing.
The Irving Case
The Irving case has set the tone for the Human Rights Tribunal’s beliefs around workplace drug testing and the workers’ rights to privacy. In Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp and Paper LTD., 2013 SCC 34, a unionized paper mill instituted a policy of randomized testing (for alcohol impairment, not drugs). Perley Day was tested, and having not consumed alcohol since 1979, blew a 0. However, through his union, Day filed a grievance challenging the reasonableness of the testing. An arbitration board agreed with the union and determined that there was insufficient evidence to support such invasive testing. Later, the Supreme Court of Canada upheld the decision on appeal.
Employers who want to implement random drug testing programs should analyze the need for such testing. They would need to demonstrate a need due to safety-sensitive roles or with evidence that on-the-job impairment is a genuine issue among the majority of the workforce.
Other Recreational Drugs
As with recreational cannabis, the Human Rights Code doesn’t protect people who may abuse other drugs from discrimination unless they are perceived to be addicted to a substance. Many workplaces have policies in place that state that workers will not engage in illegal activities. However, proving that a worker is using illicit drugs outside of work would be very challenging. For example, you may not test a worker who you suspect is using cocaine, simply because it’s an illegal drug or one that may result in a dangerous state of impairment. Training managers and supervisors to recognize signs of impairment resulting from cannabis, alcohol, other drugs, or other reasons is a key component in a Workplace Substance Management Program.
Training for Managers and Supervisors
All workers should have training in how the use of substances may cause impairment in the workplace, including how hazards resulting from impairment can impact safety on the job. Drug testing is not feasible in most situations, so it would better serve managers and supervisors to receive additional training on identifying the signs of impairment, what to do when there is suspected impairment, and how to help support workers dealing with addiction by providing them with information or resources.
Despite the legalization of marijuana, Canadian authorities stress workplace safety responsibility for both employers and employees. Establishing policies and training should be the first steps for employers.
In the U.S., where marijuana legalization is spreading across the country, the laws vary more widely. The presence of weed in a pre-employment drug screening may not be enough to refuse to hire someone in certain jurisdictions.
As always, it’s up to employers to understand the laws where they have workers and remain compliant with local regulations.
This Labor Law News Blog is intended for market awareness only, it is not to be used for legal advice or counsel.