June 10, 2008by Israel Foulon LLP
Drug and Alcohol Testing in the Workplace
In Ontario, drug testing is considered discriminatory except for a few exceptions and a considerable onus is placed on the employer to justify such testing. It is the Ontario Human Rights Commission’s view that drug and alcohol testing in employment is discriminatory and can only be used in limited circumstances. Under this view, the primary reason for conducting such testing should be to measure impairment.
Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job — such as employees who hold safety-sensitive positions, employees who have been involved in a significant accident or a near miss or if there is reasonable cause to believe a person is abusing alcohol or drugs and that abuse is effecting performance.
Only then should testing be used as part of a larger assessment of drug or alcohol abuse. It is the Commission’s view that by focusing on testing that actually measures impairment, especially in jobs that are safety sensitive, an appropriate balance can be struck between human rights and safety requirements both for employees and for the public.
As a first principle it is important to recognize that persons with disabilities are protected against discrimination in employment under the Ontario Human Rights Code. The Code uses an expansive definition of disability which encompasses physical, psychological and mental conditions. Severe substance abuse is classified as a form of substance dependence which has been recognized as a form of disability. Examples include alcoholism and the abuse of legal drugs or illicit drugs. These types of abuse and dependence, therefore, can constitute a disability under the Code.
Once an employer determines an employee suffers from a disability, the employer has a duty to accommodate that disability. Therefore a positive test for drugs or alcohol will attract a duty to accommodate employees and each employee needs to be accommodated on an individual basis. The Commission takes the view that blanket rules that make no allowances for individual circumstances are unable to meet individual requirements and are, therefore, likely to be struck down as contrary to the provisions of the Code.
Despite the fact drug and alcohol testing is discriminatory on its face under Ontario human rights law, employers can nevertheless justify discriminatory rules if the employer can meet a three-part test:
1. The employer has adopted the standard or test for a purpose that is rationally connected to the performance of the job;
2. The employer adopted the particular test in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3. The test is reasonably necessary to the accomplishment of that legitimate work-related purpose.
To show this standard is reasonably necessary, it must be demonstrated it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
It is the Commission’s view that drug and alcohol testing should be limited to determining actual impairment of an employee’s ability to perform or fulfill the essential duties or requirements of the job. It should not be directed towards simply identifying the presence of drugs or alcohol in the body.
Drug and alcohol testing that has no demonstrable relationship to job safety and performance has been found to be a violation of employee rights. A relationship or rational connection between drug or alcohol testing and job performance is an important component of any lawful drug or alcohol testing policy. In this regard the policy must not be arbitrary in terms of which groups of employees are subject to testing.
It is likely the Commission will only find that testing of employees who are in safety-sensitive positions is justifiable. Once again it is important to note that it is the Commission’s view that because drug tests do not actually measure impairment, random drug testing is an unjustifiable intrusion into the rights of employees. With respect to random alcohol testing, use of breathalyzers is a minimally intrusive, yet highly accurate, measure of both consumption and actual impairment.
Consequently the Commission supports the view that random alcohol testing is acceptable in safety-sensitive positions especially where the supervision of the staff is minimal or non-existent, but even then only if the employer meets the duty to accommodate the needs of those who test positive.
It is also the Commission’s view that testing for either alcohol or drugs may be acceptable in specific circumstances, particularly following accidents or reports of dangerous behaviour or near-misses.
Where an employee has registered a positive test, the Code requires individualized or personalized accommodation measures. Therefore policies that result in an automatic loss of employment, reassignment or that impose inflexible reinstatement conditions without regard for personal and individual circumstances are unlikely to meet this requirement. The duty to accommodate requires that an employee shall not be found incapable of performing the essential duties of a job unless it would cause undue hardship to accommodate the individual employee’s needs, taking into account the cost of the accommodation and health and safety concerns.
The employer will only be relieved of the duty to accommodate the individual needs of the alcohol- or drug-addicted employee if the employer can show, for example, that:
The cost of the accommodation would alter the nature or affect the viability of the enterprise; or
Notwithstanding accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
Although the emphasis in the Code is ensuring that persons with disabilities are not treated in a discriminatory manner, it is recognized that in some circumstances the nature or the degree of the disability may preclude that individual from performing the essential duties of the job.
Therefore it is clear that American-style “random testing” policies of all employees and “zero tolerance” policies will not be legally effective in Ontario. When such a policy is suggested in the workplace, the above noted principles should be kept in mind and legal counsel should be sought.
Chris Foulon is a Partner of Israel Foulon LLP, a leading employment and labour law firm in Toronto. Chris can be reached at 416.640.1550 or firstname.lastname@example.org.