Canadian HR Reporter

C O L U M N S 34 www.hrreporter.com T O U G H E S T H R Q U E S T I O N Have a particularly difficult or interesting question? Why not share it with us? Email: sarah.dobson@keymedia.com Have a question? CAN WE IMPLEMENT DRUG AND ALCOHOL TESTING? Q When can an employer test employees for drug and alcohol use? A Employers across Canada are legally obli- gated to ensure their workplaces are free of dangers or hazards to both employees and the general public. However, balanced against this obligation is the requirement to ensure that human and privacy rights are not ignored in trying to achieve this goal. There is no one law permitting or restricting the use of drug and alcohol testing. Rather, it springs from the decisions of courts, tribunals and arbitrators, who undertake a precise balan- cing exercise. In addition, rules on imposing testing can differ between unionized and non-unionized workplaces. In Canada, pre-employment and random drug testing is generally not permitted. The law has evolved such that any testing must be deemed a bona fide occupational requirement — employers must demonstrate that the testing has been adopted for a purpose rationally connected to job performance and in an honest and good-faith belief that it is necessary to accomplish a legitimate work-related purpose, such as workplace safety. Finally, the testing must be deemed to be reasonably necessary to accomplish this purpose by using minimally invasive testing methods and, where necessary, accommodation of a disabled employee. Case law has distilled testing to the following scenarios: pre-employment testing, random testing, reasonable cause testing, post-incident testing and return-to-work testing. All methods of testing should be set out in an employer's drug and alcohol policy. Pre-employment testing: This is generally prohibited except in specific circumstances — for example, where the nature of the job is so safety-sensitive that it is deemed necessary to address safety concerns. Employers that have established a pre-employment testing regime should ensure that if a test is positive, the testing policy provides for accommodation where appropriate. Random testing: This may be permissible for employees in safety-sensitive positions that could be defined as inherently dangerous and where it can be shown that there is an alcohol or drug abuse problem in the workplace. This is a high threshold, and the employer must show that testing is in support of a legitimate safety concern that outweighs personal privacy rights, while still achieving the duty to accommodate employees who test positive. Reasonable cause: Testing may be justi- fied if the employer has reason to believe the employee is impaired by drugs or alcohol while on duty or is unable to work safely due to impairment. A policy should indicate that such testing addresses the specific intent of ensuring workplace safety and must be supported by supervisory observations — such as the smell of alcohol, erratic behaviour, slurred speech or detection of paraphernalia in the workplace. It should also be performed by a legitimate testing provider soon after the safety concern is noticed. In unionized workplaces, the union will likely have to be involved, given that the conduct could result in discipline. Post-incident testing: This generally follows a workplace incident relating to unsafe conduct or work. It requires the employer to investigate the incident and determine, on a reasonable assessment, that the employee involved may have been impaired by alcohol or drugs. As with reasonable cause testing, this testing should be supported by evidence or observations that substantiate its need — and, again, should be performed by a legitimate testing provider soon after the incident. Return-to-work testing: This is often implemented as a condition of an employee's reinstatement following a breach of a drug and alcohol policy, a termination for attendance at work under the influence of drugs or alcohol, or a return to work following treatment. Testing involves a complicated balance of rights and obligations. Policies should be tailored to ensure that the rationale for, and response to, any test addresses current impairment, accur- ately assesses the safety-sensitive nature of the workplace, and implements a contextual and reasonable approach. CHRR The topic of drug and alcohol testing in the workplace is complicated and involves a delicate balance of workplace safety against the recognition of employees' rights to reasonable privacy and accommodation of disability, says Lorenzo Lisi of Aird & Berlis Lorenzo Lisi Partner and leader of the Workplace Law Group at Aird & Berlis in Toronto

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