On July 10, 2002, the Canadian Human Rights Commission issued a new policy on drug and alcohol testing in the workplace. Under this policy, the Commission has indicated that it will receive complaints from employees in the federally regulated sector who are treated negatively as a result of testing positive on a drug or alcohol test, or who complain about discriminatory elements in workplace drug or alcohol testing policies.
The policy attempts to balance the need to ensure workplace safety against the requirement that employees not be discriminated against due to disability, including drug and alcohol dependence, or perceived disability. To the extent that workplace impairment is a concern, it urges remedial and individualized approaches to the problem, rather than the use of disciplinary means. The policy also distinguishes between safety-sensitive positions (i.e., those where employee impairment could create a significant risk to the employee, others or the environment) and non-safety-sensitive positions.
The policy is strongly influenced by two key court decisions, both previously reported in FOCUS: the decision by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission v. British Columbia Government and Service Employees’ Union (the B.C. Firefighters case) (see “”Not reasonably necessary”: aerobic fitness test held discriminatory in B.C. woman firefighter victory”), and Entrop v. Imperial Oil, a decision by the Ontario Court of Appeal (see “Court of Appeal overrules human rights board on legality of random breathalyzer testing”). The first case established a new test for determining whether an employment practice is a bona fide occupational requirement and whether the practice satisfies the duty of accommodation short of undue hardship. The second case applied the new test to the issue of drug and alcohol testing.
Readers will recall that, under the B.C. Firefighters test, the court or tribunal asks three questions:
- whether the employment practice or standard was implemented for a purpose rationally connected to the performance of the job;
- whether the practice or standard was adopted in the honest belief that it was necessary to fulfil the work-related purpose; and
- whether the practice or standard was reasonably necessary to accomplish the work-related purpose. To prove reasonable necessity, it must be shown that it is impossible to accommodate the employee and others sharing his or her characteristics without imposing undue hardship on the employer.
Based on this approach and its application in Entrop, the Commission policy contains the following as its key elements.
Pre-employment drug and alcohol testing
Pre-employment drug and alcohol testing will be viewed as unacceptable, on the basis that, because pre-employment tests cannot predict whether a person will be impaired on the job, they are not reasonably necessary to accomplish the goal of hiring non-impaired workers.
Random drug testing
Random drug testing will also be considered unacceptable, because it cannot measure current impairment, but can only detect the fact that a person has used drugs at some point in the past. This limitation means that such testing is not reasonably necessary to accomplish the purpose of ensuring that workers are not impaired on the job, whether or not they work in safety-sensitive positions.
Random alcohol testing
The policy draws a distinction between positions that are safety-sensitive and those that are not in the context of random alcohol testing. Such testing in connection with safety-sensitive positions is acceptable, because it can detect impairment, and thus can be considered “reasonably necessary” under the B.C. Firefighters test. However, the policy requires both that employees in these positions be notified that the testing is a condition of employment, and that the employer meet its duty to accommodate those testing positive.
However, alcohol testing for non-safety-sensitive positions will be unacceptable, unless the employer has reasonable cause to believe the employee is unfit to work due to alcohol consumption, or following an accident where impairment was involved, provided such testing is part of a broader program of medical assessment and support.
Disclosure of substance abuse problems
It is acceptable to require employees working in safety-sensitive positions to disclose substance abuse problems within the past five to six years. However, automatic dismissal or refusal to hire employees who make a disclosure is not in keeping with the employer’s duty to accommodate. Follow-up random testing of those disclosing problems may be permissible, if it is tailored to individual circumstances and, again, part of a broader monitoring and support program.
Cross-border trucking and bus operations
These are a special case, because companies involved in these operations may have to develop drug and alcohol testing policies to comply with U.S. regulations. The policy states that, for these firms, it may be a bona fide occupational requirement to implement testing that is otherwise unacceptable. However, companies must still produce evidence that retaining drivers banned from driving in the U.S. would amount to undue hardship.
Accommodation and undue hardship
When it is permissible to test an employee and the employee tests positive, the policy states that employers should avoid imposing automatic consequences, such as termination or reassignment. In safety-sensitive positions, measures such as temporary removal and follow-up testing may be justified if the employee is substance-dependent. If an employee is not substance-dependent, appropriate disciplinary action may be taken.
The employer will have fulfilled its duty to accommodate the substance-dependent employee if it can show that either
- the cost of accommodation would alter the nature or affect the viability of the enterprise, or
- the health or safety risks outweigh the benefits of accommodation.
If an employee who tests positive refuses treatment, this does not by itself constitute undue hardship or warrant immediate dismissal. The employer must show through progressive discipline that it has tried to warn the employee, and that the employee is incapable of performing the essential duties of the position.
In Our View
The policy is non-binding and applies to the federally-regulated sector. However, as it is based on the leading case law, provincially-regulated employers would be well advised to review it and consider adopting its approach. The two key aspects to bear in mind are the test of reasonable necessity as it applies to workplace policies and standards and the importance of demonstrating a remedial and flexible response to the problem of impairment and substance abuse.
For further information, please contact Jennifer Birrell at (613) 563-7660, Extension 261.