- Why isn’t it an obvious violation of human rights to do mandatory collection of an employee’s fluids or breath that could reveal a disability?
Collecting an employee’s bodily fluids or breath raises privacy concerns for employees with disabilities and without disabilities. The purpose of these programs is generally to detect people who pose a health and safety risk in safety-sensitive jobs because they are impaired by drugs or alcohol. Both people with addictions and people without addictions may fall into this category. Testing positive for the presence of alcohol or a drug does not constitute proof of an addiction.
One cannot assume that just because a drug and alcohol testing policy is in place, it infringes people’s right to be free from discrimination based on disability or perceived disability. Instead, the effect of the policy must be examined in each case.
If people with addictions or people who are perceived to have an addiction are negatively affected by the policy (for example, by being fired or not offered a job because they test positive), then the policy may be discriminatory on its face (prima facie discrimination). The employer would then have to show that testing is justified using the three-step test laid out in the OHRC’s policy.
- Can employers in non-safety-sensitive workplaces set up drug and alcohol testing policies?
Human rights and arbitration case law in Canada deals with workplace alcohol and drug testing in the context of safety-sensitive positions and dangerous work environments. Employers need to consider the Code – and they must also consider employees' rights to privacy. Because of the potential to intrude on people’s privacy, drug and alcohol testing can only be justified in very narrow circumstances – where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work.
Drug and alcohol testing that has no demonstrated relationship to job safety and performance, or where there has been no evidence of enhanced safety risks in the workplace, has been found to violate employees’ rights.
Policies that focus on purposes other than safety (such as productivity) would be difficult to justify as bona fide requirements, if these policies lead to negative consequences for people with addictions or perceived addictions. For example, any testing policy designed to single out employees with addictions or perceived addictions to reduce absenteeism, improve employee wellness or monitor moral values, may be prima facie discriminatory and difficult to justify as a bona fide requirement.
There are other ways to deal with situations where employees may be impaired by drugs or alcohol at work. The OHRC policy discusses these and gives options for alternatives to drug and alcohol testing.
- What does the additional requirement of “where the employer is able to demonstrate risk in the workplace” mean for an employer that wants to do random testing? What might an employer have to show, beyond that the essential duties of the position involve safety-sensitive work, to justify random testing?
As part of showing that random testing is justified as a bona fide requirement, an organization may be expected to show the kinds of risks that are inherent in the workplace, such as the work being highly dangerous, or the kinds of consequences that may occur as a result of workplace accidents and mistakes. The employer may also be required to show that there is a problem with drugs or alcohol addiction in the workplace to justify random or other types of testing. This was the case in one Ontario arbitration case. Because the organization could not show that there was a problem with drug or alcohol use in the workplace, pre-access testing was not found to be a bona fide requirement under the Code (Mechanical Contractors’ Association of Sarnia, 2013).
In a Supreme Court of Canada case involving Irving Pulp and Paper Ltd., the Court held that while the dangerousness of a workplace is highly relevant, evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace, is also required. The Supreme Court also stated that, as seen in the Entrop case, even in a non-unionized workplace, “an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace.” The OHRC has taken the position that this requirement applies to non-unionized settings.
- Can drug and alcohol tests measure impairment?
The focus of drug and alcohol testing should be to determine actual impairment of an employee's ability to perform or fulfil the essential duties or requirements of the job at the time of the test. Alcohol testing by breathalyzer is seen to be minimally intrusive (compared to blood tests, for example) and a highly accurate measure of both levels of consumption and actual impairment. The use of breathalyzers has been found to be permissible under the Code in narrow circumstances.
It is more difficult to measure impairment through drug testing. Although many technological advances have been made, the scientific research has not confirmed that a method of drug testing exists that is analogous to the breathalyzer for alcohol in terms of:
- Ability to measure current impairment
- High level of accuracy
- Minimal level of intrusion, and
- Rapid response time.
Urinalysis can detect past use, but it cannot detect how much of the drug was used, or whether the person is currently impaired. At this time, there are still some limits to establishing impairment through oral fluid at the time of testing, due to a variety of factors. Blood testing may be the best method to detect levels of drugs associated with impairment, but it is highly intrusive. A breathalyzer for drugs is being developed. However, there is not a large body of scientific literature validating its use.
Drug testing may be permissible after a workplace accident or a “near-miss”, where there are reasonable grounds to believe that someone is impaired by drugs, or where a person is returning to work after treatment for a drug addiction. Testing in these situations may be permissible only where employees are doing safety-sensitive work, the testing is part of a larger assessment of drug addiction, and the person with the addiction is accommodated to the point of undue hardship, among other criteria. Please see the policy for more details about these specific situations.
- What can companies do instead of drug and alcohol testing to make sure employees are not coming to work impaired?
Many organizations safely carry out high-risk work without drug and alcohol testing policies. Employers should use the least intrusive means of assessing impairment or fitness for work. Other measures, such as employee assistance programs (EAPs), health promotion and substance awareness programs, and addiction accommodation policies can meet the goal of addressing drug and alcohol impairment in the workplace.
Other potential alternatives to testing include:
- Using or developing performance tests, which can test for cognitive or psychomotor impairment related to the integral parts of the job
- Training supervisors or others to assess behaviour that can affect workplace safety, including signs of someone being under the influence of alcohol or drugs
- Random checks
- Planned observations and audits
- Peer monitoring.
- If people are recreational users of drugs and alcohol, are they protected by the Code?
The Code only protects people who are casual or recreational users of substances if they are perceived to have an addiction.
Drug and alcohol testing policies may be discriminatory if an employer believes that a person has an addiction and imposes negative consequences because of this. It may also be discrimination if the drug and alcohol testing policy treats people as if they have an addiction, resulting in negative consequences.
Employers should be aware of their duties to inquire into the possibility that a disability may exist, but should not act based on stereotypes. They should also design policies in a way that does not conflate substance use with substance addiction.
Following a positive alcohol or drug test, an employee may be individually assessed and found to be a casual user, and not a person with an addiction. As a preferred approach in these situations, employers should consider tailoring any sanctions to the circumstances. Severe or harsh consequences, such as automatic dismissal, may be seen as evidence that the employer’s policy treats the employee as if they have a disability.
- Is random testing allowed under the Code?
Random testing is allowed in narrow circumstances. Because it can measure current impairment, random alcohol testing by breathalyzer is allowed where employees are in in safety-sensitive positions, but only where staff supervision is minimal or non-existent, there is evidence of risk in a particular workplace, and the employer meets its duty to accommodate people with addictions who test positive.
Random drug testing might be allowed if it could be shown to measure current impairment as well as meet other criteria. However, at the time of writing, there are still limits to establishing current impairment through rapid results from the least invasive methods of drug testing.
Even if random drug testing is allowed, it would only be allowed in situations where employees are in safety-sensitive positions, but only where staff supervision is minimal or non-existent, there is evidence of risk in a particular workplace, and the employer meets its duty to accommodate people with addictions who test positive.
- How can employers design drug and alcohol testing policies so they won’t violate employees’ human rights?
Following the test for 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
- 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.
A drug and alcohol testing policy that respects human rights and may be justifiable under the Code is one that:
- 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
- Ensures confidentiality of medical information and the dignity of the person throughout the process.
- Are employers required to send employees for addiction assessments and must employees comply?
After a person tests positive on a drug or alcohol test, they should be advised of the availability of accommodation. Employers should offer an individualized assessment conducted by someone with expertise in substance use disorders to inquire into possible disability and assess any support needed. Accommodation must be offered to people with addictions unless it causes undue hardship.
No one can be made to attend a medical examination, but failure to respond to reasonable requests may delay the accommodation until the information is provided, and may ultimately frustrate the accommodation process.
- How do employers deal with refusals – to be tested, to be assessed by a substance use disorder expert, refusing offers of accommodation, or to comply with conditions when returning to work after treatment?
Refusal to be tested: Refusing to take a drug or alcohol test should not automatically lead to the conclusion that the employee would test positive. A refusal should not lead to consequences that treat the person as if they have an addiction (e.g. being suspended from their position and not being allowed to return to work unless they attend counselling for substance use). Instead, the circumstances should be examined on a case-by-case basis, considering the reasons for refusing the test, and other relevant factors, such as the employee’s service record. Otherwise, such actions may amount to discrimination based on perceived disability.
Refusal to be assessed by a substance use disorder expert: No one can be made to attend a medical examination, but failure to respond to reasonable requests may delay the accommodation until the information is provided, and may ultimately frustrate the accommodation process.
Refusing offers of accommodation: Even if a person with an addiction or perceived addiction refuses accommodation, this does not justify immediate dismissal. The employer has to show, through progressive discipline, that the employee has been warned and is unable to perform the essential duties of the position. If the employee refuses offered accommodation and if progressive discipline and performance management have been implemented, dismissal may occur.
Refusal to comply with conditions after returning to work following treatment:
Post-reinstatement testing or other conditions may be part of a back-to-work agreement (e.g. a last-chance agreement or contingency behaviour contract), where breaching the agreement could result in terminating a person’s job. However, similar to people with other chronic disabilities, people with addictions may experience relapse after treatment. “Refusing” to comply with a back-to-work agreement may actually be because of someone’s disability.
Having an agreement in place does not negate the employer’s duty to accommodate an employee if they have a relapse.
At the same time, the employer’s obligation to accommodate is not limitless. An employer has a duty to accommodate a person with an addiction to the point of undue hardship. There may also be limited circumstances where an accommodation that otherwise would not amount to undue hardship is not required (for example, where it would still not allow the person to “fulfill the essential duties attending the exercise of the right,” or where a person is continually unable or unwilling to take part in the accommodation process, despite the employer’s attempts). In these cases, the employer’s duty to accommodate may end.
- What should happen following a positive test?
After a person tests positive on a drug or alcohol test, they should be advised of the availability of accommodation. Employers should offer an individualized assessment conducted by someone with expertise in substance use disorders to inquire into possible disability and assess any support needed. Accommodation must be offered unless it causes undue hardship, and any addiction disability will be a mitigating factor in considering if discipline is appropriate. The Code requires individualized or personalized accommodation measures. Therefore, policies that result in the automatic loss of a job, reassignment or inflexible reinstatement conditions, without regard for a person’s individual circumstances, are unlikely to meet this requirement.
If an employee's drug or alcohol addiction is interfering with their ability to perform the essential duties of their job, the employer must first provide the support necessary to enable that person to undertake a rehabilitation program, if required, unless it can be shown that such accommodation would cause undue hardship. The type of program or accommodation would depend on the person’s individualized needs. Examples could include harm reduction or abstinence-based approaches. Other accommodations (e.g. modified duties) may also need to be explored.
Employees may be assessed and found to be casual users, rather than a person with an addiction. As a preferred approach in these situations, employers should consider tailoring any sanctions to the circumstances. Severe or harsh consequences, such as automatic dismissal, may be seen as evidence that the employer’s policy treats the employee as if they have a disability.
- How many employers do drug and alcohol testing?
According to a 2003 survey of 100 employers, the overall prevalence of drug and alcohol testing in Canada was 10.3%. Figures varied widely between the provinces, ranging from 25.4% in Alberta to 4.6% in Ontario.
- How about the use of medical marijuana and how this might affect performing safety-sensitive work?
Employees may seek to use medical marijuana to ease disability-related symptoms as a form of workplace accommodation. This could happen whether employees are in safety-sensitive positions or not. The employer has a duty to take these accommodation requests in good faith, and meet its duty to accommodate to the point of undue hardship. However, because of the potential health and safety risks involved, it may amount to undue hardship to accommodate people using medical marijuana at work while they are in safety-sensitive positions, even after employers try to reduce the risk. An employer may need to seek out next-best solutions in these cases, such as alternative work.
 McDonald, as cited in Michael R. Frone, Alcohol and Illicit Drug Use in the Workforce and Workplace (Washington, DC: American Psychological Association, 2013).