March 5, 2003by Israel Foulon LLP
Question: We also do pre-employment drug screening as part of our hiring process in the U.S. Can we continue this practice once we start operations in Ontario?
Answer: Although drug-testing is pervasive among employers in the U.S. , there are strict restrictions on drug and alcohol testing in Ontario . The Ontario Human Rights Code recognizes alcoholism and drug abuse as forms of disability which is a prohibited ground of discrimination. The Ontario Human Rights Commission takes the view that testing for drug and alcohol use is prima facie discriminatory and is only permissible in limited circumstances.
Since drug and alcohol testing is a type of medical examination, such testing is prohibited if conducted as part of a pre-employment screening process of applicants.
At the interview stage any pre-employment testing for drug or alcohol use must be restricted to determining the candidate’s ability to perform the essential requirements of the job.
In order for you to do drug screening of applicants prior to hiring, you must be able to demonstrate this testing would provide an effective assessment of the candidate for employment, for example an assessment of the applicant’s ability to do the job and not just a test of whether she uses drugs or alcohol.
For example such testing may be justifiable in safety-sensitive positions, such as the use of potentially dangerous machinery or vehicles. It should be noted the commission takes the position that because drug testing cannot be shown to actually measure impairment, this testing should never be conducted.
The bottom line is that any drug or alcohol testing which is conducted for the purposes of determining whether the candidate is able to perform the essential duties of the job should only be carried out after a conditional offer of employment has been made.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today