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Toronto – The OHRC today launched its updated Policy on drug and alcohol testing. This Policy offers guidance to Ontario employers and employees about drug and alcohol testing, and about the potential human rights concerns arising from testing.

Why isn’t it an obvious violation of human rights to do mandatory collection of an employee’s fluids or breath that could reveal a disability?

Section 30 of the Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to comply with the Code.

There are ways to address health and safety in the workplace other than drug and alcohol testing. Several other factors, including fatigue and stress, can cause workplace accidents. Many organizations safely carry out high-risk work without drug and alcohol testing policies.[81] As stated earlier, employers should use the least intrusive means of assessing impairment or fitness for work.

7.1. Duty to accommodate

When developing a testing program or policy, employers should also consider:

5.1. Testing before the job Testing for drug or alcohol use sometimes takes place before a person is hired, transferred or promoted into a position (“pre-employment” or “certification” testing) or is allowed, as a contractor, to start work on a client’s job site (“pre-access” testing).[35] The principles around these types of testing are similar.

Testing for alcohol or drug use is a form of medical examination. Even where they are put in place in good faith, drug and alcohol testing programs and policies may result in adverse effects based on addiction or perceived addiction (called prima facie discrimination, or discrimination “on its face”).

Section 5(1) of the Code prohibits discrimination in employment on 16 grounds including disability. Section 10(1) of the Code includes an expansive definition of the term “disability” which encompasses physical, psychological and mental conditions. Drug and alcohol (substance) addictions[17] are disabilities protected by the Code.

Drug and alcohol testing is a concern for Ontario employers that have safety-sensitive operations, or that are subject to U.S. regulatory requirements (e.g. the trucking industry)[12] or to the policies of U.S. affiliates with “zero tolerance” for the consumption

The Ontario Human Rights Code (Code) recognizes the inherent dignity and worth of every person and provides for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.

The Ontario Human Rights Commission (OHRC) recognizes that it is a legitimate goal for employers to have a safe workplace. Safety at work can be negatively affected by many factors, including fatigue, stress, distractions and hazards in the workplace. Drug and alcohol testing is one method employers sometimes use to address safety concerns arising from drug and alcohol use. Drug and alcohol testing has particular human rights implications for people with addictions. Addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code (Code). The Code prohibits discrimination against people with disabilities and perceived disabilities in employment, services, housing and other social areas.

Supplementary Submission of the Ontario Human Rights Commission to the Ministry of Community Safety and Correctional Services’ Provincial Segregation Review October 2016

On Thursday, September 29, 2016, Chief Commissioner Renu Mandhane launched the OHRC’s Policy on ableism and discrimination based on disability. The OHRC introduced its first policy on disability in 2001. Since that time, there have been many important case law developments, new international human rights standards, and evolving social science research.

Section 30 of the Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code.

The ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employers, housing providers, service providers and other responsible parties covered by the Code. It is not acceptable to choose to stay unaware of discrimination or harassment of a person with a disability, whether or not a human rights claim has been made.

While the Code specifies that there are only three factors that will be considered when determining whether the test for undue hardship has been met (cost, outside sources of funding and health and safety issues), in some cases, courts and tribunals have recognized that even where these three factors are not at issue, there is not a limitless right to accommodation.[275] There may be other narrow circumstances where it may not be possible to accommodate a person’s disability.

Organizations covered by the Code have a duty to accommodate to the point of undue hardship. Some degree of hardship may be expected – it is only if the hardship is “undue” that the accommodation will not need to be provided.[238]

Under the Code, employers and unions, housing providers and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard. Accommodation is necessary to ensure that people with disabilities have equal opportunities, access and benefits. Employment, housing, services and facilities should be designed inclusively and must be adapted to accommodate the needs of a person with a disability in a way that promotes integration and full participation.

Section 8 of the Code protects people from reprisal or threats of reprisal.[114] A reprisal is an action, or threat, that is intended as retaliation for claiming or enforcing a right under the Code.

6.1 Direct, indirect, subtle and adverse effect discrimination Discrimination may take many different forms. For example, it may take place in a direct way. It can happen when individuals or organizations specifically exclude people with disabilities in housing, employment or services, withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate or bona fide reason. This discrimination is often based on negative attitudes, stereotypes and bias about people with disabilities.

The Code does not provide a definition of discrimination. Instead, the understanding of discrimination has evolved from case law. To establish prima facie discrimination (discrimination on its face) under the Code, a claimant must show that:

Discrimination may be unique or distinct when it occurs based on two or more Code grounds. Such discrimination is said to be “intersectional.” The concept of intersectional discrimination recognizes that people’s lives involve multiple interrelated identities, and that marginalization and exclusion based on Code grounds may exist because of how these identities intersect.