Drug and alcohol testing in the workplace can raise concerns about employee privacy, human rights and workplace safety.
In Ontario, employers do not have an unrestricted right to require employees to undergo drug or alcohol testing. According to the Ontario Human Rights Commission, workplace drug and alcohol testing can generally only be justified in limited circumstances where there is a rational connection between the testing, job performance and workplace safety. Testing that has no demonstrated relationship to job safety and performance, or where there is no evidence of increased safety risks in the workplace, may violate employees’ rights.
Whether workplace drug or alcohol testing is justified depends on the particular circumstances. Relevant considerations can include whether an employee performs safety-sensitive work, the nature and degree of the workplace risk, the reason for testing, whether less intrusive alternatives are available, and whether the testing method can measure current impairment. Employers must also consider their duty to accommodate employees with drug or alcohol addictions to the point of undue hardship.
Random drug and alcohol testing is even more restricted. The fact that an employee works in a dangerous or safety-sensitive workplace does not, on its own, necessarily justify random testing.
Drug and alcohol testing can also raise human rights concerns. Drug and alcohol addictions may constitute disabilities protected under the Ontario Human Rights Code, which can trigger an employer’s duty to accommodate an employee with an addiction to the point of undue hardship.
When Can an Employer Require Drug or Alcohol Testing?
An employer cannot necessarily require drug or alcohol testing simply because it has adopted a workplace drug and alcohol policy. Under the Ontario Human Rights Commission’s Policy on Drug and Alcohol Testing, testing policies that have discriminatory effects must be justifiable as bona fide requirements of the job, including being rationally connected to the work and reasonably necessary to accomplish a legitimate work-related purpose.
Depending on the circumstances, testing may be justified where there is a legitimate connection between possible impairment and workplace safety. Situations in which drug or alcohol testing may potentially be permitted include:
- where there are reasonable grounds to believe an employee may be impaired while performing safety-sensitive work;
- following a significant workplace accident or near-miss where there is reason to believe impairment may have played a role;
- as part of a return-to-work or reinstatement arrangement involving an employee with a substance-use disorder; or
- in limited circumstances involving random testing of employees performing safety-sensitive work.
The circumstances surrounding the test matter. According to the Ontario Human Rights Commission, testing should be connected to performing the job and should focus on determining impairment rather than simply detecting whether an employee has used drugs or alcohol.
Is Random Drug Testing Legal in Ontario?
Random drug and alcohol testing may be permitted in Ontario in limited circumstances, but working in a safety-sensitive position does not automatically give an employer the right to conduct random tests.
In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, the Supreme Court of Canada considered a random alcohol testing policy in a dangerous workplace.
The Court upheld an arbitration decision finding the policy unreasonable. Although the workplace was dangerous, there was insufficient evidence of an alcohol problem in the workplace to justify the significant intrusion on employee privacy.
The decision demonstrates the balancing required between an employer’s interest in workplace safety and an employee’s privacy interests. Even where work is safety-sensitive, the particular risks and circumstances of the workplace must be considered.
Drug and Alcohol Testing in Safety-Sensitive Workplaces
Whether an employee occupies a safety-sensitive position is an important consideration in determining whether workplace drug or alcohol testing may be justified.
The Ontario Human Rights Commission describes a safety-sensitive job as one in which incapacity due to drug or alcohol impairment could result in a direct and significant risk of injury to the employee, other people or the environment. Whether a particular job is safety-sensitive must be considered in the context of the industry, workplace and employee’s involvement in high-risk operations.
In Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), the Ontario Court of Appeal considered drug and alcohol testing in safety-sensitive employment and the competing interests of workplace safety, employee privacy and human rights.
Any drug or alcohol testing policy should be rationally connected to the performance of the particular job and should not be more intrusive than reasonably necessary.
For example, in Saskatchewan Health Authority and HSAS, Re, 2020 CarswellSask 158, a blanket testing policy applicable throughout the workplace was found unreasonable where some of the affected positions did not involve an elevated level of safety risk or danger.
Random Drug Testing on an Oil Tanker
The decision in Syndicat international des marins canadiens et Desgagnés Marine St-Laurent inc. (MF), 2020 QCTA 271, provides an example of circumstances in which random drug testing was upheld. An employee working as a seaman aboard an oil tanker was dismissed after failing a random drug test under the employer’s alcohol and drug policy. The workplace was unionized, and the testing policy had been incorporated by reference into the collective agreement.
The arbitrator recognized the employee’s privacy interests but found the testing justified in the particular circumstances, including the unusually hazardous working environment and the need for crew members to be capable of responding to serious emergencies. The decision does not give employers a general right to conduct random testing whenever a workplace is considered dangerous. Rather, it illustrates why the specific workplace, job duties, safety risks and circumstances surrounding a testing policy matter.
Reasons for Drug Testing in the Workplace
Employers may seek drug or alcohol testing for different reasons, but a workplace policy should be directed toward a legitimate workplace safety concern rather than simply determining whether an employee has consumed drugs or alcohol outside work.
One important distinction is between detecting drug use and establishing impairment. The Ontario Human Rights Commission states that the primary purpose of workplace drug and alcohol testing should be to measure impairment, rather than to deter drug or alcohol use or monitor employees’ lifestyles.
Some drug tests can identify previous drug use without establishing that an employee was impaired while working. This can make drug testing particularly complicated when an employer is attempting to determine whether an employee was fit to perform their job safely.
Testing methods, the reason for the test, the employee’s position and the circumstances leading to the request should therefore all be considered when determining whether workplace testing is reasonable.
Can an Employer Drug Test You After a Workplace Accident?
Drug or alcohol testing following a workplace accident or near-miss may be permitted in specific circumstances, such as where there is an established connection between impairment and the performance of safety-sensitive job duties.
However, an accident does not necessarily give an employer an automatic right to require testing.
The Ontario Human Rights Commission’s guidance on reasonable-cause and post-incident testing states that reasonable-ground testing should be based on objective evidence. This may include observed behaviour consistent with impairment, seeing an employee use drugs or alcohol at work, or finding substances or related items near the employee or their work area.
Drug and Alcohol Addiction as a Disability
Drug and alcohol dependence can constitute a disability under the Ontario Human Rights Code. As a result, an employee with an addiction may be protected from discrimination and entitled to workplace accommodation to the point of undue hardship.
A positive drug or alcohol test should therefore not necessarily result in automatic discipline or termination. The Ontario Human Rights Commission states that following a positive test, employers should provide an individualized assessment of possible drug or alcohol addiction and accommodate employees with addictions to the point of undue hardship.
Employers should also avoid assuming that a positive drug or alcohol test proves that an employee has an addiction. Substance use and substance dependence are not necessarily the same thing.
Can You Be Fired for Refusing a Drug or Alcohol Test?
An employee’s refusal to take a drug or alcohol test does not automatically establish that the employee was impaired or would have tested positive.
However, refusing a test can have employment consequences where an employer has made a lawful and reasonable request for testing.
In Mielke and Entrec Corp., Re, 2015 CarswellNat 6411, an employee in a safety-sensitive position was dismissed after refusing post-incident drug and alcohol testing required under the employer’s policy. The adjudicator upheld the dismissal in the circumstances, including the employee’s knowledge of the policy and the events leading to the testing request.
Whether discipline or termination is justified will depend on the circumstances, including whether the employer had reasonable grounds to require the test in the first place.
Employees who believe a testing request violates their rights may wish to obtain legal advice before deciding whether to refuse the test.
What About Pre-Employment Drug Testing in Ontario?
Pre-employment drug and alcohol testing raises additional human rights concerns in Ontario.
The Ontario Human Rights Commission takes the position that drug and alcohol testing as part of the initial applicant screening process is prohibited under subsection 23(2) of the Ontario Human Rights Code.
Although case law has not ruled out testing after a person receives a conditional offer for a safety-sensitive position, the OHRC recommends against this practice. If testing results in an applicant being denied employment because of an addiction or perceived addiction, human rights concerns may arise.
Workplace Drug and Alcohol Policies in Ontario
A workplace drug and alcohol policy must balance legitimate safety objectives against employees’ privacy and human rights.
According to the Ontario Human Rights Commission, factors that may raise concerns about a workplace testing policy include policies that:
- do not have a sufficient connection to workplace safety or an employee’s job duties;
- apply broadly to employees who do not perform safety-sensitive work;
- use unnecessarily intrusive testing methods;
- fail to protect the confidentiality of employees’ medical information;
- treat a positive test as automatic proof of impairment or addiction;
- impose automatic discipline or termination without considering an employee’s individual circumstances; or
- fail to accommodate an employee with an addiction-related disability to the point of undue hardship.
Employers should also consider whether less intrusive measures could adequately address the workplace safety concern. Where testing occurs, employees’ medical information should be handled confidentially and testing procedures should respect their dignity.
Employee Rights and Drug Testing in Ontario
Employees have privacy and human rights interests that must be balanced against an employer’s legitimate obligation to maintain workplace safety.
Whether drug or alcohol testing is permitted will depend heavily on the individual circumstances. Relevant considerations may include whether the employee holds a safety-sensitive position, the risks associated with impairment, the reason testing has been requested, the type of testing being used, whether the test can measure current impairment and whether disability-related accommodation is required.
Note: Some employees working in Ontario are employed in federally regulated industries and may be subject to federal human rights and employment laws rather than Ontario legislation. This can include employees working for airlines, banks, telecommunications companies and certain interprovincial transportation businesses. The applicable legal framework should be considered when assessing an employee’s rights.
If you have been asked to undergo workplace drug or alcohol testing, received a positive test result, or are facing discipline or termination related to drug or alcohol use, an employment lawyer can help you understand your rights and legal options.
Monkhouse Law Employment Lawyers provides a free 30-minute phone consultation for employees seeking advice about workplace issues. Contact Monkhouse Law to discuss your situation with an employment lawyer.