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1. Introduction

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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. Employers, employees and other responsible parties have duties under the Occupational Health and Safety Act[1] and other legislation to make sure their workplaces are safe. Employers can be held criminally responsible for serious safety violations.[2] Safety at work can be negatively affected by many factors, including fatigue, stress, distractions and workplace hazards. Drug and alcohol testing is one method employers sometimes use to address safety concerns arising from drug and alcohol use. Drug and alcohol testing in employment is commonplace in the United States[3] and is increasing worldwide.[4] However, such testing is controversial[5] and has been the subject of several labour arbitration, human rights tribunal and court decisions in recent years. Some types of testing are particularly disputed, such as random testing, drug testing and pre-employment testing.

The controversy surrounding drug and alcohol testing relates to the collision between workplace requirements and employee human and privacy rights. The International Labour Organization has stated, “Testing of bodily samples for alcohol and drugs in the context of employment involves moral, ethical and legal issues of fundamental importance, requiring a determination of when it is fair and appropriate to conduct such testing.”[6]

The Supreme Court of Canada has noted that in both unionized and non-unionized workplaces, employers must pay careful attention to balancing safety and privacy interests when considering drug and alcohol testing.[7] On the importance of a person’s privacy in the context of drug and alcohol testing, the Court stated: 

…Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity” (R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431-32). And in R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399, it notably drew no distinction between drug and alcohol testing by urine, blood or breath sample, concluding that the “seizure of bodily samples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meet constitutional requirements” (para. 23).[8]

Drug and alcohol testing has particular human rights implications for people with addictions. People who have present, past or perceived addictions to drugs and alcohol
are considered people with “disabilities” under the Code[9] and are protected from discrimination in employment and all other social areas.[10] People with addictions are entitled to the same human rights protection as people with other disabilities.[11] Workplace drug and alcohol testing policies and programs may discriminate against people with addictions or perceived addictions, and where they do, may only be justified in limited circumstances.

Drug and alcohol testing is not automatically necessary for employees who appear impaired by drugs or alcohol. Other methods that could address the issue are explained in section 5.2.

This policy can help employers, unions and other responsible parties understand and meet their legal responsibilities under the Code relating to drug and alcohol testing. It can be a useful tool for employers who are considering setting up workplace drug and alcohol testing programs as one aspect of broader health and safety policies. Employers can also use this policy to supplement their drug and alcohol policies, workplace training materials and anti-discrimination and harassment policies. See Appendix A for more about the purpose of OHRC policies.

[1] Occupational Health and Safety Act, RSO 1990, c O1.

[2] Under subsection 217.1 of the Criminal Code, RSC, 1985, c C-46, employers must take steps to make sure their workplaces are safe for their employees. Employers who fail to do so may be held criminally liable for negligence (subsection 22.1).   

[3] For example, in 2004, 62% of American Management Association member companies used some form of testing for illicit drugs. Michael R. Frone, Alcohol and Illicit Drug Use in the Workforce and Workplace (Washington, DC: American Psychological Association, 2013) at 147. 

[4] International Labour Organization, “Coming Clean: Drug and Alcohol Testing in the Workplace,” World of Work Magazine, 57 (September 2006) online: International Labour Organization (retrieved February 21, 2015). For a review of the drug and alcohol testing laws and practices in the European Union, see European Monitoring Centre for Drugs and Drug Addiction, “Legal status of drug testing in the workplace,” online: European Monitoring Centre for Drugs and Drug Addiction (Retrieved August 21, 2014); and Anya Pierce, “Regulatory Aspects of Workplace Drug Testing in Europe” (2012)
Drug Test. Analysis 62.

[5] For example, the effectiveness of drug and alcohol testing in the workplace is disputed. Although several studies have found that drug and alcohol testing reduces workplace injuries and accidents, reviews of the literature have identified many methodological flaws in these studies, including the existence of other uncontrolled variables that may have explained the results. This has led some researchers to conclude that there is sparse evidence that drug and alcohol testing lowers the incidence of occupational accidents and injuries. Ken Pidd & Ann Roche, “How effective is Drug Testing as a Workplace Safety Strategy? A Systematic Review of the Evidence” (2014) 71 Accident Analysis and Prevention, 154; Frone, supra note 3; Scott Macdonald et al., “Testing for Cannabis in the Work-place:
A Review of the Evidence,” (2010) 105 Addiction, 408. One strong study noted by researchers is J.E. Brady, et al., “Effectiveness of Mandatory Alcohol Testing Programs in Reducing Alcohol Involvement in Fatal Motor Carrier Crashes,” (2009) 170(6) Am. J. Epidemiol., 775, which found that alcohol testing programs had a substantial effect on reducing accidents among truck drivers. 

[6] International Labour Organization, Management of Alcohol- and Drug-Related Issues in the Workplace. An ILO code of practice (Geneva: International Labour Office, 1996) at 16.

[7] Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34 at paras 19-20, [2013] 2 SCR 458 [“Irving”].

[8] Ibid., at para 50. 

[9] In Entrop v Imperial Oil 50 OR (3d) 18 at para 89, 2000 CanLII 16800 (CA) [“Entrop”], the Ontario Court of Appeal accepted a Board of Inquiry finding that drug abuse and alcohol abuse are “each a handicap” (now referred to as “disability”) and that each is “an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning.” The Court also accepted that drug dependence and alcohol dependence are each “handicaps” entitled to protection under the Code.

[10] The Code covers five social areas: employment, accommodation (housing), goods, services and facilities, membership in vocational associations and contracts.

[11] Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593 (CanLII).

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