For immediate publication
Toronto - The Ontario Human Rights Commission (the “Commission”) has initiated a complaint against Goldcorp Inc. (“Goldcorp”), alleging that sections of the company’s Drug and Alcohol Testing Policy violate the Ontario Human Rights Code (the “Code”).
In 2002, the Commission received a complaint from a Goldcorp employee concerning that company’s drug and alcohol testing policy. When the complaint was settled in 2004, Goldcorp agreed to attempt to work with the Commission to update its policies to reflect the Code and current human rights law. However, at this time, Goldcorp’s policy continues to permit random and pre-employment drug testing of all employees, as well as pre-transfer drug testing for select employees.
The courts have found that pre-employment and random drug testing are not related to an employee’s current level of impairment, or their ability to perform their job. Drug testing shows only past use, and therefore provides no evidence of impairment. Random alcohol testing can measure impairment and may be warranted for safety-sensitive positions as part of a larger program to achieve a work environment free of alcohol and drugs.
The Commission’s Policy on Drug and Alcohol Testing, revised in 2000, recognizes that the law identifies dependence on a substance, such as drugs or alcohol, as a form of disability, a position reaffirmed by the Ontario Divisional Court in their decision Wednesday in Kelly v. Toronto Police Service. Employers have a duty to accommodate employees with dependencies short of undue hardship. At the same time, freedom from impairment by drugs or alcohol is a bona fide job requirement. Individuals with dependencies may be removed from their job responsibilities for cause, such as behaviour that could put others in danger, or following an actual or near miss incident. However, less severe sanctions than dismissal, and necessary support to permit treatment, must be considered.
”The Commission always prefers a cooperative approach to resolving human rights concerns,” said Chief Commissioner Barbara Hall. “However, after more than two years of negotiations, we felt it was necessary to initiate this complaint so that the Commission could use its legislated power to investigate the situation.”
The Code gives the Commission the power to file a complaint and investigate any matter that may be leading to discrimination against a group protected under the Code, in this case, persons suffering from drug and alcohol addictions. No determination has been made at this point, and following an investigation, if the matter is not resolved, the Commission may decide to refer or not refer the complaint to the Human Rights Tribunal of Ontario for a hearing.
For more information on the Commission and its policies, please visit the Commission's Web site.
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Senior Policy Analyst
Policy Education, Monitoring and Outreach Branch (PEMO)
Ontario Human Rights Commission