Due to human rights protections, there are limited circumstances under which an employer in Canada can demand that their employee submits to drug and alcohol testing. Based on precedent established by the Supreme Court of Canada, any employer who implements drug and blood testing for work requirements must establish proof of bona fide job requirements. That means the testing must be:
- Adopted for a purpose that is rationally connected to performing the job;
- Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose; and
- Reasonably necessary to accomplish that legitimate work-related purpose.
Additionally, the primary purpose of drug testing must be to determine impairment, not simply to establish that the individual uses drugs or alcohol. It holds that drug and alcohol testing before the employee begins work is unacceptable in most cases, since testing doesn’t establish that the person will come to work impaired.
Your employer may demand drug and blood testing for work under the following circumstances; however, each situation is different.
- The employer establishes that there is evidence of risk in that specific workplace, like a history of accidents or safety issues resulting from drug or alcohol impairment on the job.
- There is an accident or near-miss on the job, and the employer reasonably believes that drug or alcohol impairment may have been a factor in the incident.
- The testing is part of an agreed-upon return-to-work plan for an employee who had to take leave in order to receive rehabilitation for a drug or alcohol use problem.
Additionally, according to the Human Rights Commission, a drug and alcohol testing policy should meet the following requirements to be justifiable under the Human Rights Code:
- The policy is based on a rational connection between the purported purpose of the test (which must be to minimize risk of workers being impaired to ensure safety in the workplace) and job performance.
- The testing is necessary to achieve safety.
- The employer has already explored less intrusive methods for ensuring safety and found them inadequate.
- The employer only demands testing in limited circumstances, such as for-cause or post-incident situations.
- There are not automatic consequences to employees who test positively.
- The employer does not conflate substance use with substance addiction.
- The testing is part of a larger assessment of drug or alcohol addiction that may involve employee assistance programs, drug education and awareness, and medical assessment by a professional.
- The employer provides individualized accommodation (to the point of undue hardship) for people with addictions who test positive.
- The employer uses highly accurate and minimally intrusive testing methods.
- The employer takes measures to ensure confidentiality of medical information and dignity throughout the testing process.