While U.S. employers know that their human resources policies may need to be tweaked to comply with Canadian laws, many are surprised at how different Canada’s drug testing laws are.
In the United States, drug use and impairment in the workplace are seen the same as any other criminal activity. In Canada, however, employee drug use and impairment is governed by human rights and privacy legislation.
Because drug addiction is considered a disability in Canada, it is protected by human rights legislation. And drug testing is often seen as an invasion of an employee’s privacy. As a result, drug testing is only allowed in very limited circumstances: in safety sensitive positions or after an incident or near miss.
One of the main reasons that drug testing is not generally allowed is that drug testing methods do not necessarily show a current state of impairment. Just because drugs are in an employee’s system, does not mean he is impaired from working. Drug test results can therefore be of little use in determining if drugs were a real “cause” of an incident or near miss, for example.
Given this reasoning, many judges and other decisionmakers are of the view that an employee’s privacy rights trump the usefulness of drug testing. When employers rely on a positive drug test and fire an employee after an incident or near miss, their decisions have often been overturned on this basis.
This is exactly what happened in a recent case from British Columbia involving Canadian National Railway Company (CNR) (Canadian National Railway Company v. USWA (Local 2004), 2008 CarswellNat 3280 (Can. Arb. Bd.)).
In this case, a track maintainer for CNR got into a verbal altercation with his foreman, while he was on duty. The foreman said that the employee shoved his phone in the foreman’s face. CNR’s policies included such behaviour as an “incident” and the employee had to undergo a drug test. After testing positive for marijuana, the employee was fired.
The employee’s union filed a grievance and argued that the positive drug test (which happened to be urinalysis) did not prove that the employee was impaired, but only that the employee had used marijuana sometime in the past. The company argued that the employee was still likely under the influence of marijuana when the incident occurred.
The arbitrator disagreed with the employer, and said that even if there was marijuana in the employee’s system, there was no evidence that the employee was impaired from the marijuana when the employee took the drug test. Further, the employee had admitted to using marijuana two days before the drug test, explaining why it was still in his system.
The arbitrator did not see a “credible link” between the employee using marijuana on a Saturday and “impairment or likely impairment at the registering of a positive drug test the following Tuesday.” In weighing the employer’s interest in a safety-sensitive workplace against the employee’s privacy rights, particularly given the limitations of the drug test in indicating impairment, the employee’s privacy interests won.
As such, CNR was ordered to reinstate the employee with full back pay, benefits and seniority.
In light of this decision, employers must evaluate their options following incidents or near-misses. Employers must determine what type of evidence needs to be gathered to demonstrate impairment.
As the CNR case demonstrates, relying on a positive drug test alone may not be sufficient. Employers should consider interviewing witnesses who may have seen evidence of impairment or using methods other than urinalysis. Do not let a drug test take the place of a full investigation.
So how exactly does this work when the Human Rights Commission states that an employer does not have to accommodate an admitted casual user?
The Human Rights Commission states that drug or alcohol addictions are considered a disability and that an employee cannot be discriminated against based on any disability. Because the casual user does not fit the criteria of an addiction, they also do not fit the criteria of being disabled under Human Rights.
Human Rights provides protection for individuals based on a number of criteria (sex, race, religion, disability etc.), but do not provide protection for bad choices.