When it comes to drug testing, the courts favour employees.
If it isn’t necessary, it may build distrust.
Screening for drug addiction may be seen as discrimination.
A Guide to Drug Testing for Employers
Do you drug test your Canadian employees? It’s time to rethink that policy.
If you’re an employer from the United States looking to hire Canadian workers, you should be aware that Canada – despite cultural similarities – tends to have a very different set of rules and regulations with respect to employment.
In the United States, drug testing often plays a part in all stages of employment. For jobseekers in certain industries, being tested for drug use is an expected part of the hiring process. Even after being hired, employees are often subject to mandatory drug tests at random and may end up without a job if they test positive. Some states have few restrictions and limitations with respect to drug testing employees.
In contrast, drug testing employees has been ruled prima facie discriminatory under Canadian law, making it problematic for employers to do so in Canada. Exceptions are only granted in “safety-sensitive” professions under certain circumstances.
This article does not constitute legal advice. Please consult with a lawyer before acting.
Drug and alcohol testing of employees has raised privacy concerns on both sides of the border, but courts may have reached different conclusions. If you’re not careful, drug testing your employees could land you in violation of Canadian privacy laws.
Performing random drug tests on employees – except in extraordinarily rare circumstances and contexts – is considered a violation of employment law. According to the Ontario Human Rights Commission, “Drug and alcohol testing that has no demonstrated relationship to job safety and performance, or where there has been no evidence of enhanced safety risks in the workplace, has been found to violate employees’ rights.”
Although generally considered to be unjustifiably intrusive, Canadian law recognizes the need to balance workplace safety and privacy. Consequently, drug testing employees is not always considered to be in violation of the law. The only positions where drug and alcohol testing would be permissible are jobs considered to be “safety-sensitive.” In addition, the tests must be effective in detecting safety risks.
According to the ELA, purely random drug testing of employees would only be permitted if “the employer has reasonable cause to believe an employee is impaired while working, has been directly involved in a workplace accident or significant incident/near miss, or is returning to work after a treatment for alcohol or substance abuse.” Otherwise, the employer would be considered to have unlawfully violated the privacy interests of their employer or employers.
However, even if the position is considered safety-sensitive, drug testing is still legally in murky waters at best. A high profile incident was the seven-year long fight between Suncor Energy and Unifor – respectively a major energy firm and a union organization. In 2012, Suncor instituted a random drug testing policy at its locations, citing safety concerns and incidents. Despite dealing with safety-sensitive positions, Unifor members filed a suit against the energy firm claiming an invasion of privacy as one of their points. The result was a long legal battle between the two parties, which arrived at differing conclusions. Although Suncor and Unifor have both ultimately agreed to allow random drug testing, the legal question remains unsettled.
If you are planning on drug testing your employees, do keep in mind that this will be considered an invasion of privacy and a legal gray area at best. Perform only as strictly needed and only after thinking hard about it.
In Canada, employers have a responsibility to provide reasonable accommodations to employees based on disability status. The employer would be required to accommodate the employee in question unless it poses “undue hardship” (e.g. poses safety risks, too costly, etc.).
Drug addiction – including alcohol addiction – falls under the legal definition of disability in the Canadian Human Rights Act. Section 25 of the Act defines a “disability” as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.” This applies whether the addiction is current or past, actual or perceived. Taking action based on positive results may be ruled as discriminatory based on perceived disability – even if the employer’s suspicions turn out to be false.
In 1990, TD Bank quickly found itself in what would become an eight-year legal battle after it started administering drug tests to new and returning employees. After nearly a decade of legal turmoil, the courts ultimately ruled in 1998 that the policy infringed on the rights of drug-dependent persons and was unable to find any justifiable connection between the policy and job performance of its employees.
No Employment at Will
At-will employment refers to the concept whereby an employer may discharge an employee at any time for whatever reason they feel like, subject to certain restrictions. This means that you are allowed to lay off an employee without cause at any time except on the basis of discrimination based on certain protected classes. The United States is more or less alone in the developed world in that employment is at-will in all states except Montana. However, this is a rare exception from a global perspective – and a Canadian one.
Much like in the United States, employers in Canada are generally allowed to terminate an employee for any reason. However, unless “just cause” is established, the employee will be entitled to applicable advance notice and severance pay. Otherwise, this would constitute Wrongful Termination. The exact rules and regulations regarding how much advance notice they must give and how much severance they must pay (if necessary at all) will depend on the province and how long the employee has been working at the organization.
Although being a recreational drug user is not considered a protected class in Canada, it alone is not considered to be “just cause.” However, there may still be reasons why drug use may be considered grounds for termination, such as in the circumstances described above.
The safest bet to avoiding problems associated with drug testing is simply not to perform it at all. Should you decide that your company operates positions where drug testing is crucial, ask yourself if it is necessary to test your employees – both current and prospective – for drugs and alcohol. If not, your small business may find it better to divert funds to more productive causes.