October 15, 2003 by Israel Foulon LLP
Question: Can an employer request that its employees undergo lie detector tests?
Answer: For the most part, Canadian employment standards legislation does not contain comprehensive prohibitions against the use of lie detector tests in the employment context. The major exceptions to this are the unique provisions in the Ontario and New Brunswick Employment Standards Acts, which specifically prohibit employers from either asking or actually requiring an employee or job applicant to take a lie detector test. Not only is the employee expressly entitled to refuse to submit to such a test, but the employer cannot require, enable or influence, either directly or indirectly, an employee to take a test.
Despite their apparent breadth, these prohibitions do not completely outlaw the use of lie detector tests. Employers are still entitled to suggest to an employee that he consider submitting voluntarily to a test, and even to arrange an appointment for the employee. It would appear that the mischief at which the section is aimed is “pressure” by the employer with actual or potential employment-related consequences for the employee.
Furthermore, there is an increasing awareness and legislative protections of privacy rights in Canada . It is possible that if this information was obtained without the employee’s consent or if it is being used for a purpose other than that for which it was collected, there would be a violation of the employee’s personal data protection. At present, the Personal Information Protection and Electronics Act (PIPEDA) applies to employment relationships in a “federal work, undertaking or business” (for example, banking, telecommunications or airlines). As of Jan. 1, 2004, PIPEDA will apply to non-federal organizations unless a province has enacted a “substantially similar” law. To an employer, the single most important principal to remember is: “Get consent.”
While Canadian employers, with the exception of Ontario and New Brunswick , can require their employees to take lie detector tests, it is still advisable that when doing so they obtain the employees’ consent.
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 pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today