Last year we reported on a case where a Canadian employer was ordered to reinstate an employee who had tested positive for marijuana following a verbal altercation with his employer. Why? Because drug addiction is considered a disability in Canada. And individuals who suffer from addiction are protected from discrimination under human rights legislation.
Because drug testing is considered an invasion of privacy, it is allowed only:
- where there is reasonable cause to suspect impairment while at work;
- where there has been a near miss or incident that may have involved impairment; or
- in certain safety-sensitive positions involving the operation of large vehicles.
New human rights policy
On November 24, 2009, the Canadian Human Rights Commission (CHRC) released a revised Policy on Alcohol and Drug Testing. While the policy isn’t law, it contains recommendations for companies that are federally regulated, such as the banks, airlines, and interprovincial trucking companies.
Random drug testing – safety-sensitive positions
One notable update to the policy is with respect to random drug testing for safety-sensitive positions. Previous versions of the policy allowed random drug testing for truck and bus drivers who crossed the Canada-U.S. border. Drug testing was allowed because of the need to meet stricter requirements of U.S. drug and alcohol testing policies.
In contrast, random drug testing wasn’t allowed for drivers who operated solely in Canada. This was largely because, unlike breathalyser testing, random drug testing by urinalysis can’t identify impairment at the time of testing. As such, a urinalysis test can’t distinguish between an impaired employee and one who has used drugs at another point in time.
The revised policy no longer makes this distinction – it permits random drug testing for all bus and truck drivers. The reason? Random drug testing can be a deterrent against drug use and can assist in identifying employees at higher risk for vehicular accidents. The CHRC has also noted that it’s possible that these factors could be extended to other types of safety-sensitive positions, thereby opening the door for random drug testing in other safety-sensitive industries.
What about the case law?
Interestingly, the revised policy is in direct contrast to recent provincial tribunal and court decisions, notably Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900 (arbitration award). Here, an arbitration board considered the use of a new type of testing – oral fluid testing by buccal swab. This swab allows an employer to take a sample of saliva for drug testing. The lab results, available a few days later, can indicate whether the employee was impaired at the time of testing. The arbitration board decided that this test lacked the immediacy of a breathalyser test, and as a result, a policy of random oral fluid testing for safety-sensitive positions wasn’t permissible. In 2009, the Ontario Court of Appeal agreed with the arbitration board (court decision).
It will be interesting to see how the law will evolve with the update of the CHRC policy and the continual development of new and improved methods of drug testing. In the event that technology progresses and drug impairment can be detected on the day of testing, random drug testing could be permitted for many safety-sensitive positions. The Supreme Court of Canada has yet to weigh in on the issue of drug and alcohol testing in the workplace. With the potentially contradictory lines of argument developing, it may be time.
Contact the author, Hadiya Roderique