Drug Testing in Canada

In Canada and most other countries, it is illegal to drive a car while impaired by alcohol. Most experts agree that the use of the breathalyzer by the police to detect alcohol-impaired drivers has helped reduce alcohol-related crashes. Given the success of the breathalyzer, some companies have used breathalyzers to identify workers impaired by alcohol. Drug testing programs have also been implemented to identify workers who use other drugs, such as marijuana or cocaine.

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How common are drug testing programs in Canada?

According to a recent survey, about 10% of Canadian worksites and 18% of BC worksites with 100 or more employees have drug testing programs. These programs are much more common in the United States, where legislation in the 1980s made drug testing more widespread in all types of companies. In Canada, drug testing is primarily conducted in situations where safety is a concern.

What are they and why are they used?

The most common reason that companies adopt drug testing in Canada is to reduce industrial accidents related to drug use. Some employers have argued that simply using drugs, whether on or off the job, increases the likelihood that employees will have a job accident.

The most common form of drug testing in Canada is urinalysis. This test analyzes urine from employees for recent use of drugs such as cannabis, cocaine, opiates and amphetamines. Saliva, hair and blood can also be analyzed for drugs.

There are several situations where employees may be asked to comply with a drug test. Testing is sometimes requested from job applicants. Employees may be tested either on a random basis or after a job accident. If employees test positive for drugs, there are often negative consequences, which can include being fired.

What is workplace impairment?

Impairment commonly refers to an altered state of physical and/or mental functioning. In a workplace context, someone who is impaired may have difficulty completing tasks in a safe manner and may put themselves, their coworkers and the public in danger.

For more information on impairment in the workplace, visit the Canadian Centre for Occupational Health and Safety webpage on impairment at work.

What are potential causes of workplace impairment?

There are many potential causes of workplace impairment, including the use of legal and illegal substances such as alcohol, cannabis including foods that contain cannabis known as “edibles”, street drugs and certain medications, as well as factors such as fatigue and certain medical conditions.

For more information on impairment in the workplace, visit the Canadian Centre for Occupational Health and Safety webpage on impairment at work.

What about the use of cannabis for medical purposes in the workplace?

The use of cannabis for medical purposes must be treated like any other prescription medication. An employee who has all of the necessary legal and medical authorizations to possess and use cannabis for medical purposes triggers an employer’s obligation to accommodate its use to the point of undue hardship.

For more information on impairment in the workplace, visit the Canadian Centre for Occupational Health and Safety webpage on medical marijuana.

TRANSPORTATION-RELATED DRUG TESTING

Employers must note that Canada does not have legislation mandating alcohol and drug testing policies for transportation workers. Employers are recommended to consult the Canadian Motor Carrier Industry before implementing a testing policy that targets transportation employees.

If an employer determines that company transportation is a safety-sensitive position, the employer may be able to implement a drug testing policy according to the standards specified above. We recommend employers to consult with counsel before making this determination.

DRUG AND ALCOHOL POLICY

An employer must have a Drug and Alcohol Policy implemented within the workplace to implement employee drug testing appropriately. It is best for employers to discuss specific requirements when drafting a policy such as:

• Who falls within the policy
• What is prohibited under the policy
• What is a safety sensitive position
• What is considered a policy breach
• When does the policy take effect
• How will consequences for a violation be determined

Additionally, employers are recommended to address accommodations for disabilities within the workplace. In Canada, drugs and alcohol dependence is considered a disability. The employer should use a Substance Abuse Professional to determine whether a problem exists and accommodate such employees with solutions.

Even if employers chose not to implement employee drug testing, the facility should still have a Drug and Alcohol Policy that outlines employee expectations and standards of the work environment. Employers should remain up to date with any developing case law and update drug and alcohol policies accordingly.

Pre-employment Testing

Canadian jurisdictions have not been consistent regarding the extent to which pre-employment testing is permissible. Adjudicators in the province of Ontario have generally forbidden the practice. It could be argued that Alberta has taken a more permissive approach.

The reason for the divided landscape relates to the concern that a pre-employment testing regime could be used to engage in unlawful discrimination against persons with addiction-related disabilities. For this reason, an employer may be wary of implementing pre-employment testing because it may trigger an accommodation obligation before a candidate has commenced employment.

Given the inconsistent and unsettled state of the law, manufacturers pursuing such a practice may want to consider

• adopting a pre-employment testing regime only where necessary to promote legitimate workplace safety objectives; and
• designing a pre-employment testing regime that does not automatically disqualify any candidates who test positive or that, at a minimum, contemplates the possibility that in appropriate circumstances candidates can overcome a positive test to secure employment.

Random Testing

The threshold for justifying random employee testing is very high. For random testing to be a reasonable intrusion on employee privacy, courts have required that

• employees subject to random testing occupy “safety-sensitive” and “inherently dangerous” positions;
• evidence exist of an enhanced safety risk, such as a general workplace problem of substance abuse, and that less invasive efforts to remedy the issue have been unsuccessful; and
• the means chosen to implement random testing is proportional in that it achieves or is likely to achieve the goal of workplace safety while also being minimally invasive on the employee’s privacy.

Random testing of the general employee population in nonsafety-sensitive positions is essentially prohibited. Hence, an employer will likely want to ensure it has different drug and alcohol testing procedures for each sector/area of the manufacturing plant, based on risk to safety to the employee, other workers, or third parties.

Reasonable-Cause Testing

Testing of an individual employee may be allowed in specific cases where there is reasonable cause to believe the employee is impaired by drugs or alcohol while on duty or is unable to work safely due to impairment from alcohol or drugs.

Employers may consider implementing a policy that requires , wherever practicable, the supervisor (who intends to direct an employee to undergo drug and alcohol testing based on his or her observations) to seek a second opinion from another supervisor or another person in a position to observe the employee in question. This second member would attempt to observe the employee for signs of impairment.

Where reasonable cause is established, this category of testing is justified as protecting legitimate workplace safety objectives, which are put at risk by present impairment. Thus, an employer may want to consider carrying out the testing procedures for reasonable cause impairment as soon as possible after observing signs of impairment.

Additionally, an employer may want to include in its reasonable-cause drug and alcohol testing policies a statement  that a refusal to undergo testing will be treated as a positive test or is otherwise disciplinary. Decision makers have readily upheld discipline where reasonable cause is established and an employee refuses to submit to testing.

Post-incident Testing

A manufacturer may also test an employee who was involved in a workplace “incident.” Post-incident testing requires assessing whether there is reasonable cause to suspect that an employee involved in a workplace incident may have been impaired by drugs or alcohol, and the appropriate balancing of employee and employer rights and interests demonstrates that the need for drug or alcohol testing outweighs the employee’s privacy interests. In its policy, a manufacturer should consider specifying that the meaning of “incidents” relates to risks specific to its workplace, which could include circumstances that caused or had the potential to cause:

• personal injury;
• lost working or production time; or
• property damage greater than a nominal amount.

Employers may want to take some factors into consideration, such as asking the employee and witnesses for an explanation of the incident, and considering whether there is a reasonable explanation that does not involve impairment of the employee, before ordering a test.

Return-to-Work Testing

Courts have generally accepted return-to-work testing for an employee who has previously breached a drug and alcohol policy as reasonable. As part of an employee’s rehabilitation program, a policy requiring return-to-work testing may involve regular and/or random alcohol or drug testing for a specified period of time.

Drug and Alcohol Testing: Practical Suggestions

In developing and implementing a drug and alcohol policy, a manufacturing employer in Canada may want to ensure that

• testing (other than reasonable cause testing) exists only where there is a critical issue that needs to be addressed, such as a threat to safety in the possibility of employee impairment;
• the decision to test is made only after considering all contextual factors;
• managers and supervisors are trained on the testing regime, including how to identify reasonable cause to believe there is present impairment; and
• policies are tailored to the legitimate safety objectives of the workplace and are responsive to specific workplace concerns based upon documented evidence.