Drug and Alcohol Testing at the Worksite

January 23, 2012

It is important to know the law around drug and alcohol testing.  The main concern is human rights law.

If you are working in a unionized environment, your Collective Agreement likely addresses these issues or there is some understanding with the Union in place.  However, for those in the non-unionized sector, the following points should be kept in mind.

The Human Rights Act protects individuals from being discriminated against on the grounds that they have a dependency on drugs or alcohol.  However, the law is also such that it doesn’t protect casual use of drugs and alcohol, nor does it justify the use of drugs or alcohol by addicts at the workplace.

In a safety sensitive workplace such as a construction site, most employers will be able to establish that it is a Bona Fide Occupational Requirement (“BFOR” is the common abbreviation) that a worker be free of the influence of drugs or alcohol while at the workplace.  However, if an employee discloses to an employer that he or she has a dependency, that employer is obligated to accommodate that employee to the point of undue hardship, notwithstanding the fact that there is a potential for accidents.

This duty to accommodate means that employers must work with their employees to institute a system whereby both parties can be satisfied that drugs or alcohol are not playing a role at the worksite, while at the same time ensuring that the employee is not discriminated against.  For example, if an employee were to disclose an alcohol or drug dependency, an employer would likely be violating that employee’s human rights if he or she were to terminate that employee without giving them a chance to demonstrate that they can work safely notwithstanding their dependency.

Best Practices

Accordingly, Courts and Tribunals have found that the following approach will minimize the risks to both employers and employees:

  1. Obtain employees’ written consent to test them for alcohol and drugs according to the following conditions.  You should retain a lawyer to help you draft this form.
  2. Have all new employees undergo testing for drugs or alcohol as a pre-condition of their employment.
  3. Random drug testing is a violation of employees’ human rights.  The law protects only the ability to be at a worksite that is safe, it does not disallow the consumption of drugs or alcohol on personal time.  As random testing may disclose unrelated drug use, it is generally not justifiable.
  4. Drug tests may be justified by incidents or the personal history of an employee.  Where an employer has reasonable grounds to believe that an employee is under the influence, or where the employer and the employee have agreed to regular tests as part of an accommodation agreement, such tests are justified.
  5. Finally, any drug testing should be done in a manner sensitive to the employee’s dignity.  Testing should be conducted by professionals in a professional environment.

In conclusion, drugs and alcohol can pose a major threat in the workplace.  As such it is key that employers have a plan that maximizes workplace safety while maintaining respect for workers and employees.

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