Canadian Human Rights Commission Policy on Alcohol and Drug Testing

CANADIAN HUMAN RIGHTS COMMISSION POLICY ON ALCOHOL AND DRUG TESTING

Summary

The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability. Disability includes those with a previous or existing dependence on alcohol or a drug. Perceived disability may include an employer's perception that a person's use of alcohol or drugs makes him or her unfit to work.

Because they cannot be established as bona fide occupational requirements, the following types of testing are not acceptable:

Ð'* Pre-employment drug testing

Ð'* Pre-employment alcohol testing

Ð'* Random drug testing

Ð'* Random alcohol testing of employees in non-safety-sensitive positions.

The following types of testing may be included in a workplace drug- and alcohol-testing program, but only if an employer can demonstrate that they are BONA FIDE OCCUPATIONAL REQUIREMENTS:

Ð'* RANDOM ALCOHOL TESTING OF EMPLOYEES IN SAFETY SENSITIVE POSITIONS:

Alcohol testing has been found to be a reasonable requirement because alcohol testing can indicate actual impairment of ability to perform or fulfill the essential duties or requirements of the job. Random drug testing is prohibited because, given its technical limitations, drug testing can only detect the presence of drugs and not if or when an employee may have been impaired by drug use.

Ð'* DRUG OR ALCOHOL TESTINIG FOR REASONABLE CAUSE OR POST-ACCIDENT:

where there are reasonable grounds to believe there is an underlying problem of substance abuse or where an accident has occurred due to impairment from drugs or alcohol, provided that testing is a part of a broader program of medical assessment, monitoring and support.

Ð'* PERIODIC OR RANDOM TESTING FOLLOWING DISCLOSURE OF A CURRENT DRUG OR ALCOHOL DEPENDENC /ABUSE PROBLEM

may be acceptable if tailored to individual circumstances and as part of a broader program of monitoring and support. Usually, a designated rehabilitation provider will determine whether follow-up testing is necessary for a particular individual.

Ð'* MANDATORY DISCLOSURE OF PRESENT OR PAST ALCOHOL DEPENDENCY/ABUSE:

may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures. Generally, employees not in safety-sensitive positions should not be required to disclose past alcohol or drug problems.

Under these limited circumstances where testing is justified, employees who test positive must be accommodated to the point of undue hardship. The Canadian Human Rights Act requires individualized or personalized accommodation measures. Policies that result in the employee's automatic loss of employment, reassignment, or that impose inflexible reinstatement conditions without regard for personal circumstances are unlikely to meet this requirement. Accommodation should include the necessary support to permit the employee to undergo treatment or a rehabilitation program, and consideration of sanctions less severe than dismissal.

The employer will be relieved of the duty to accommodate the individual needs of the alcohol- or drug-dependent employee only if the employer can show that:

1. the cost of accommodation would alter the nature or affect the viability of the enterprise, OR

2. notwithstanding the accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing individualized accommodation or consideration to a worker with an addiction or dependency problem.

Cross-Border Trucking and Busing

For companies that drive exclusively or predominantly between Canada and the U.S., not being banned from driving in the U.S. may be a bona fide occupational requirement, provided there is evidence that the continued employment of banned drivers would constitute an undue hardship to the employer.

Drivers denied employment opportunities or who face disciplinary or other discriminatory employment consequences in Canada as a result of the imposition of the U.S. rules have a right to file a complaint with the Canadian Human Rights Commission on the ground of real or perceived disability. Drivers who test positive must be professionally assessed and must be accommodated by their employer in accordance with Canadian law and jurisprudence. Accommodation might include alternative employment within the company, and/or treatment and rehabilitation. After treatment and rehabilitation, drivers could be reassigned to Canada-only routes, unless doing so would constitute an undue hardship to the employer.

Introduction

The Canadian Human Rights Commission recognizes that inappropriate use of alcohol or drugs can have serious adverse effects on a person's health, safety and job performance. Safety is a prime consideration for employees and employers; however the need to ensure safety must be balanced against the requirement that employees not be discriminated against on the basis of a prohibited ground of discrimination. Workplace rules and standards must have a demonstrable relationship to job safety and performance otherwise they can violate an employee's human rights.

The Canadian Human Rights Commission views drug testing generally as not acceptable, because it does not assess the effect of drug use on performance. Available drug tests do not measure impairment, how much was used or when it was used. They can only accurately determine past drug exposure. Therefore, a drug test is not a reliable means of determining whether a person is Ð'-- or is not Ð'-- capable of performing the essential requirements or duties of their position. However, alcohol testing may be acceptable in some cases, because a properly administered breathalyser is a minimally intrusive and accurate measure of both consumption of alcohol and actual impairment.

If impairment from substance abuse is a concern in the workplace, an employer should focus on ways of identifying potential safety risks and remedying them, rather than punishing. The most effective ways of ensuring that performance issues associated with alcohol and drug use are detected and resolved are through awareness, education, effective interventions and rehabilitation. An employer should consider adopting comprehensive