DRUG TESTING IN CANADA

"The workplace presents itself as a potential vehicle through which drug abuse can be contained, controlled and prevented by means of the actions taken within it"
-Abstracted from Shain, Martin,"The Extent and Nature of Drug-Related Problems in the Canadian Workplace," "Canadian Labour Law Journal 2(3), (1994) (p292)

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Are alcohol and drug testing legal?

There are at present no Canadian laws at the federal or provincial level that would specifically prohibit drug testing and there has been minimal legal precedence to provide guidance.

Lack of Guidance

To date the role of mandatory drug testing in the workplace remains unresolved. There is no legislation specifying who can be tested, when and how the test is to be performed and what to do with a positive result.

The lack of guidance from government at all levels has left many companies to develop their own comprehensive substance abuse policies which include drug testing, for dealing with workplace substance abuse. Employers feel the liabilities associated with not taking the appropriate action to prevent accidents that may result from workplace alcohol and drug use outweighs the issues associated with workplace drug testing. The balance between health and safety and human rights lies in why and how drug testing is being used.

Human Rights Issues

The jurisdiction of the federal Human Rights Act extends to all federal government departments, agencies and crown corporations, and any industry that is federally regulated (e.g. post office, banks, air, and interprovincial rail, marine and motor carrier transportation). Although there may be some times that the jurisdiction is not totally clear cut, in general, the provinces have jurisdiction in all other situations.  With respect to substance abuse issues, the scope and protection of human rights legislation appears to be limited to those individuals that have a dependence on alcohol or drugs; it is arguable whether casual users of drugs are or are not protected.

Although employers cannot limit employment opportunities for any individual on a prohibited ground of discrimination, an action is not considered discriminatory if it is based on a bona fide occupational requirement (BFOR) -a consideration that appears in the majority of human rights legislation in Canada. The concept concerns the actual ability of employees to perform their duties without risk to themselves or others. Employers have the right to expect safe, efficient, and reliable performance from their employees, while individuals have the right to be assessed and treated according to their capacity to provide such performance. Jurisprudence in defining what constitutes BFOR was established by the Supreme Court of Canada, which suggested two tests must be satisfied:

• an employer who introduces a restriction which limits the  opportunities of an individual protected by the Act must honestly believe that the restriction is necessary because of the nature of the job and not for any other reason, and,
  
  
• the employer must show that the restriction is necessary for the safe, economical, and efficient performance of the job.
  

(excerpt from Alcohol and Drugs in the Workplace pg.112 Barbara Butler)

*Gas Chromatography/Mass Spectrophotometry

From the Drug Watch International Position Statement on Drug Testing

Drug related health costs, crime and erosion of worker productivity costs billions of dollars annually.Drug testing is a useful tool in combating these problems. The aim of responsible drug testing is to deter drug use and rehabilitate those who need help in overcoming problems.

Workers support drug-free workplace programs which include drug testing and provide firm and compassionate education and rehabilitation.

The science of on-site drug testing is solid and the results are accurate. The accuracy has been well established and approved by the American Probation and Parole Association Drug Testing Guidelines.