Appendix B: Summary of drug and alcohol testing situations and the Ontario Human Rights Code

Appendix B: Summary of drug and alcohol testing situations and the Ontario Human Rights Code

Where drug and alcohol testing policies or programs lead to negative consequences based on addiction or perceived addiction, they may be prima facie discriminatory (discrimination on its face). In these cases, employers can only justify drug and alcohol testing where it is a reasonable and bona fide (legitimate) requirement (BFR). If it cannot be justified, such testing will violate the Ontario Human Rights Code. Drug and alcohol testing policies should be designed to meet the Supreme Court of Canada’s test for bona fide requirements (see section 4).

Appendix B: Summary of drug and alcohol testing situations and the Ontario Human Rights Code
DRUG AND ALCOHOL TESTING SITUATIONS SUMMARY CONSIDERATIONS

Drug testing before the job

 OHRC recommends against testing. 
  • Testing cannot establish or predict that a person will come to work impaired
  • At the time of writing, there are still limits to establishing current impairment through rapid results from the least invasive methods of drug testing
  • If it causes adverse impacts based on addiction or perceived addiction, the employer may have difficulty establishing testing as a BFR

Alcohol testing before the job

 OHRC recommends against testing.
  • Testing cannot establish or predict that a person will come to work impaired
  • If it causes adverse impacts based on addiction or perceived addiction, the employer may have difficulty  establishing it as a BFR

Random drug testing

Testing may be permissible if:

  • The technique used is highly accurate, can measure impairment at the time of the test, is minimally intrusive and provides rapid results
  • Employees are in safety-sensitive positions
  • Staff supervision is minimal or non-existent
  • There is evidence of risk in the particular workplace
  • The employer meets its duty to accommodate the needs of people with addictions who test positive
  • At the time of writing, there are still limits to establishing current impairment through rapid results from the least invasive methods of drug testing
  • Therefore, it may be difficult for an employer to establish testing as a BFR

Random testing that meets the requirements under the Code may still be vulnerable to legal challenges based on employees’ privacy

Random alcohol testing

Testing may be permissible if:

  • Alcohol breathalyzer used
  • Employees are in safety-sensitive positions
  • Staff supervision is minimal or non-existent
  • There is evidence of risk in the particular workplace
  • The employer meets its duty to accommodate the needs of people with addictions who test positive
  • Alcohol breathalyzer is highly accurate, can measure current impairment, is minimally intrusive and provides rapid results

Random testing that meets the requirements under the Code may still be vulnerable to legal challenges based on employees’ privacy

Reasonable grounds and post-incident testing (drug and alcohol)

Testing may be permissible if:

  • In specific circumstances, such as where there has been a link established between impairment and performing safety-sensitive job duties
  • It is part of a larger assessment of drug or alcohol addiction
  • The employer meets its duty to accommodate the needs of people with addictions who test positive
  • In the case of post-incident testing, looking at the condition of the employee is a reasonable part of the investigation
  • The decision to test an employee on reasonable grounds should be based on specific observed behaviours or other indicators (see section 5.2)
  • Post-incident testing can follow accidents or reports of dangerous behaviour that has resulted in “near-misses”

Testing as part of a rehabilitation plan(drug and alcohol)

Testing may be permissible if:

  • An employee is returning to a safety-sensitive position
  • Return-to-work conditions are tailored to the person’s individual circumstances
  • Any testing periods set are reasonable and not overly onerous or intrusive
  • An employee may be expected to meet certain conditions when they return to work following treatment, including unannounced testing
  • Even after a relapse, an employer still has a duty to accommodate; however, the duty to accommodate is not limitless (see section 5.4 for more information) 

Testing positive: people with addictions

If an individualized assessment determines that someone has an addiction:

  • Individualized accommodation must be made to the point of undue hardship

E.g. support must be provided to help the person take a rehabilitation program, unless it causes undue hardship

  • Disability must be taken into account as a mitigating factor when considering discipline 
  • Automatic termination, reassignment or inflexible reinstatement conditions are not acceptable responses
 Under the Code, people with disabilities must be accommodated at work to the point of undue hardship   

Testing positive: casual or recreational users

The Code may apply where a person is:

  • Subjectively perceived by the employer to have a disability, or
  • Treated, through the consequences of the drug and alcohol testing policy, as if they have an addiction

If an individualized assessment determines that someone does not have an addiction:

  • A preferred approach is to tailor any sanctions to the person’s individual circumstances
  • Casual or recreational users of drugs or alcohol (as opposed to people with addictions) are protected by the Code only if they are perceived to have a disability

Policies and programs that treat casual substance users as if they have substance addictions may contribute to a person being found to have a “perceived disability”