Drug and Alcohol Testing

In their quest to ensure a safe working environment, a growing number of employers are turning to random drug and alcohol testing to identify employees who are impaired while on the job.

Sounds reasonable enough, doesn�t it? And, for the record, the Commission supports the responsibility of employers to provide for the safety of their work force.

But experts have established that the current technology used in testing for drugs doesn�t deliver the goods: a positive result cannot measure whether a person is under the effect of a drug at the time the test is administered. All it can do is confirm that the individual who tests positive has been exposed to a drug at some time in the recent past - and "recent" can mean up to several weeks before the test.

Employers also need to know that, in most instances, the Canadian Human Rights Commission considers the practice a violation of human rights, whether conducted randomly or even as a pre-employment condition.

Why? Because both previous and existing dependence on alcohol or drugs is considered a disability, and the Canadian Human Rights Act prohibits discrimination by employers on that ground. Even an employer�s perception that a person�s use of drugs or alcohol will make him or her unfit to work is included in the definition of a disability.

Two court decisions - one by the Supreme Court of Canada (British Columbia Public Service Employee Relations Commission v. British Columbia Government and Service Employees� Union) and the other by the Ontario Court of Appeal (Entrop v. Imperial Oil) - have called into question whether drug testing by an employer is defensible.

The decisions suggest that workplace rules and standards that have no demonstrable relationship to job safety and performance violate employees� human rights.

So, last year, the Commission set out to ensure its policy on drug testing was in line with the courts� view. To help us achieve that, we launched public consultations to consider input from a wide variety of groups impacted both by the case law and our legislation. The comments we received were wide-ranging and useful, and we believe the resulting policy respects both our concern to protect the human rights of individuals and employers� concerns for safety. The Commission�s policy on alcohol and drug testing outlines when and why it considers testing unacceptable, and those exceptions when they may be defensible.

Given both the current case law and our policy, what can employers do? Well, they have other options and, increasingly, leaders in the field are advocating the benefits of approaches other than drug and alcohol testing in the workplace.

Where the impairment of employees is a valid concern, employers need to focus their attention on identifying potential safety risks and remedying them. They should consider adopting comprehensive workplace health policies that may include employee assistance programs, drug education and health promotion programs, off-site counselling and referral services, and peer or supervisor monitoring. Awareness, education, intervention and rehabilitation are among the most effective ways of ensuring that performance issues associated with alcohol and drug use are detected and resolved.

And employers also need to know that substance dependency is not solely responsible for workplace safety concerns: stress, anxiety and fatigue can also be major contributors to job impairment.

Testing for alcohol is different than for drugs, because results can confirm whether a person is actually impaired at the moment the test is administered. Anyone impaired while working in a safety-sensitive environment risks injury to himself or herself, to others, and even to the environment. Allowing random alcohol testing of individuals working in these positions protects all of us. If testing is carried out properly, the Commission supports random alcohol testing of employees while at work in safety-sensitive positions as a measure of both consumption of alcohol and level of impairment.

Employers need to be mindful, though, that they have a duty to accommodate the affected individual in the event a test reveals impairment. Accommodation measures should include referring the employee to a substance abuse professional, providing the support needed to allow the employee to undergo treatment or rehabilitation, and returning the individual to their position once rehabilitation has been successfully completed. An employer can only expect to waive this responsibility if it can be shown that accommodation would cause the employer undue hardship.

Employees who believe they have been dismissed, disciplined or treated negatively, as well as applicants who have been denied employment, as a result of testing positive on a drug or alcohol test can file a complaint with the Commission.

To obtain a copy of the Commission�s policy on drug and alcohol testing, or to get more information about human rights, visit our website at www.chrc-ccdp.ca.

(Kerry Buck is the Director of Policy and International Program with the Canadian Human Rights Commission.)