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4. Establishing discrimination and Code defences

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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”). Drug and alcohol testing policies and programs may adversely affect people based on disability or perceived disability by imposing negative consequences (such as discipline, dismissal or refusal to hire), imposing inflexible extra terms and conditions on someone’s job,[23] not accommodating to the point of undue hardship people who test positive, or not respecting people’s dignity and confidentiality through the testing process.

Under the Code, where drug and alcohol testing policies or programs are found to be prima facie discriminatory, the employer may establish a defence by showing that the policy, rule, requirement, standard or test that resulted in the adverse effect is a legitimate or bona fide requirement.[24] The employer must use the three-step test laid out by the Supreme Court of Canada[25] to establish on a balance of probabilities that the policy, rule, requirement, standard or test:

  1. Was adopted for a purpose that is rationally connected to performing the job
  2. Was adopted in an honest and good faith belief that it was necessary to fulfilling that legitimate work-related purpose
  3. Is reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.

Section 17 of the Code also provides a defence to discrimination where a person with a disability is unable to perform an essential requirement of their job. However, a person will only be considered incapable of performing the essential duties if their disability-related needs cannot be accommodated without undue hardship.[26] In the case of drug and alcohol testing, this defence is only available if the employer can show that testing, or other methods to establish that someone is impaired by drugs or alcohol, are reasonable and bona fide requirements.[27]

By keeping the three-step test in mind when designing drug and alcohol testing policies and programs, employers can avoid potential discriminatory effects on people with addiction or perceived addictions. A well-designed policy that responds to these three steps at the outset can help an employer if it is challenged under the Code.

Employers should consider these questions: 

  • Is there an objective basis for believing that safe performance of the job would be compromised by drug or alcohol impairment? Is there a rational connection between the purpose of testing (e.g. minimizing the risk of impairment to ensure safety) and job performance?
  • Is there an objective basis to believe that the degree, nature, scope and probability of risk caused by alcohol or drug impairment will adversely affect the safety of the individual, co-workers, members of the public or the environment?
  • Is testing reasonably necessary to identify people who, at the time of the test, cannot perform their jobs safely because they are impaired by alcohol or drugs?[28] Is testing reasonably necessary to achieve a work environment free from impairment from alcohol and drugs? For example, is there a demonstrated problem with drug and alcohol use in the workplace? [29]
  • Are there less intrusive ways to accomplish the legitimate work-related purpose (e.g. peer or supervisory reviews)?
  • Does the standard or test incorporate individual differences, in that it accommodates people who test positive to the point of undue hardship? 

After considering these questions, there may be no objective basis to conclude that an employer should set up workplace drug and alcohol testing policies or programs. It may be that other measures, such as safety checks, health promotion and substance awareness programs, and addiction accommodation policies can meet the employer’s goal of addressing safety risks or performance issues due to drug and alcohol impairment.

However, if testing is justified, the following guiding principles should be kept in mind:

  • A relationship or rational connection between drug or alcohol testing and job performance is an important component of any lawful drug or alcohol testing policy or program. Drug and alcohol testing that has no demonstrable relationship to job safety and performance, or where there has been no evidence of enhanced safety risks in the workplace, has been found to be a violation of employee rights.[30]  
  • The policy or program must not be arbitrary in terms of which groups of employees are subjected to testing. For example, when considering the employer’s rationale for testing, testing only new or returning employees but no other employees may not be justifiable. At the same time, testing employees in safety-sensitive positions may be justifiable in some circumstances.
  • A safety-sensitive job can be characterized as one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury
    to the employee, others or the environment. Whether a job can be categorized as safety-sensitive must be considered within the context of the industry, the particular workplace, and an employee’s direct involvement in a high-risk operation. Any definition must take into account the role of properly trained supervisors and the checks and balances present in the workplace.
  • The primary reason for conducting drug and alcohol testing should be to measure impairment, rather than deterring drug or alcohol use[31] or monitoring moral values among employees. Drug and alcohol testing should be limited to determining actual impairment of an employee's ability to perform or fulfil the essential duties or requirements of the job at the time of the test. It should not be directed towards simply identifying the presence of drugs or alcohol in the body.
  • Employers should use the least intrusive means of assessing impairment or fitness for work.
  • Drug and alcohol testing policies are part of workplace rules and standards. Therefore, standards governing the performance of work should be inclusive. Employers must build conceptions of equality into workplace policies.
  • Company-wide policies such as drug and alcohol testing policies must accommodate employees on an individual basis. Individualization is central to the notion of dignity for persons with disabilities and to the concept of accommodation.[32] “Blanket” rules that make no allowances for individual circumstances are likely to be found to be discriminatory.[33]

Example: An employer in a highly dangerous workplace is concerned about fairness and decides to extend an existing random alcohol testing policy originally designed for employees in safety-sensitive positions to cover all other employees. The purpose of the policy is to ensure workplace safety through an environment free from impairment from alcohol. Employees are automatically suspended for three days when they test positive. Even though the policy provides for generous rehabilitation programs for people with addictions who test positive, the employer may not be able to justify the policy as a bona fide requirement. This is because the automatic suspension does not reflect the individual circumstances of employees with addictions. In addition, there are very few risks associated with these particular non-safety-sensitive jobs. This makes it difficult to show a “rational connection” between the purpose of alcohol testing (safety) and job performance. Also, because less intrusive methods are available to detect when people in non-safety-sensitive jobs are impaired, the employer may find it difficult to justify testing as “reasonably necessary” to achieve the purpose of keeping the workplace free from impairment from alcohol.

Any drug and alcohol testing program should be one piece of a broader health and safety policy. Steps taken to reduce risk in the workplace due to impairment from drug and alcohol use should happen alongside other measures to increase workplace safety, such as making sure employees are properly trained, and reducing workplace hazards and distractions.

Sometimes third parties, such as clients, will ask that an employer put a drug and alcohol testing policy or program in place. However, where it has an adverse impact on people with disabilities or perceived disabilities, the employer must still show that the policy or program is a bona fide requirement using the three-step test.[34]

Overall, a well-designed drug and alcohol testing program or policy that respects human rights may be justifiable under the Code. However, employers still have a responsibility to make sure that these are not applied in a way that leads to a specific situation of discrimination. The elements of a program or policy that respect human rights are laid out in the summary section of this policy.

[23] In Entrop, supra note 9, Imperial Oil’s drug and alcohol testing policy was found to be prima facie discriminatory in part because it subjected the claimant, a person with a past disability, to automatic reassignment to a less desirable, non-safety-sensitive job. In addition, he was reinstated to his original position only after agreeing to a “rigorous medical evaluation and ongoing controls” (at para. 118), including two years of rehabilitation, five years of abstinence, attending a self-help group (apparently indefinitely), committing to reporting to the employer any changes to his circumstances that could increase the risk of relapse, periodic reporting to the employer compliance with the conditions and committing to annual medical examinations including screening for alcohol and drug abuse. The employer could not show that these requirements were reasonably necessary under the bona fide requirement test (paras. 118-127).

[24] Section 11 of the Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but which have a negative effect on people identified by the Code. This is often called “adverse effect discrimination.” In these cases, the Code allows the person or organization responsible for creating the adverse effect to show that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group the person belongs to cannot be accommodated without undue hardship.

[25] British Columbia (Public Services Employee Relations Commission) v British Columbia Government and Services Employees Union (BCGSEU)(Meiorin Grievance) [1999] 3 SCR 3 [“Meiorin”]at para 54.

[26] See section 7.1. on the duty to accommodate for more information. See also Meiorin, ibid.

[27] In Entropsupra note 9, the Ontario Court of Appeal said that if an employer cannot show that testing, or other methods to establish impairment such as mandatory disclosure and automatic reassignment, are themselves bona fide requirements, then its defence under section 17 will fail (at para. 83).

[28] See Entropsupra note 9, at para 96. At para. 97, the Ontario Court of Appeal stated:

An employer's workplace rule may fail to satisfy the third step in the Meiorin test in several ways.For example the rule may be arbitrary in the sense that it is not linked to or does not further the employer's legitimate purpose; the rule may be too broad or stricter than reasonably necessary to achieve the employer's purpose; the rule may unreasonably not provide for individual assessment; or the rule may not be reasonably necessary because other means, less intrusive of individual human rights, are available to achieve the employer's purpose.

[29] This analysis must be based on persuasive evidence. In Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLII 54951 (ON LA)  [“Mechanical Contractors Assn Sarnia, 2013”], the adjudicator examined whether there was a health and safety problem at the workplace due the use of drugs or alcohol. The adjudicator concluded there was no such problem in the workplace, which formed part of the reason why the pre-access drug and alcohol testing could not be justified as a bona fide requirement. The collective agreement issues in the decision were upheld on appeal in Mechanical Contractors Association Sarniv United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663 2014 ONSC 6909 (CanLII) [“Mechanical Contractors Assn Sarnia, 2014”]. Because the collective agreement issues were upheld, the Divisional Court said that it did not need to consider the human rights issues.

[30] See Irving, supra note 7, at para 31; Entrop, supra note 9. See also Mechanical Contractors Assn Sarnia, 2013, supra note 29, upheld in Mechanical Contractors Assn Sarnia, 2014; Canada (Human Rights Commission) v Toronto-Dominion Bank, [1998] 4 FCR 205, CanLII 8112 (FCA).

[31] Researchers have noted that there are few methodologically strong research studies that confirm that workplace drug and alcohol testing deters alcohol or drug use. For a review of the literature, see Frone, supra note 3.

[32] For more information, see Ontario Human Rights Commission, Policy and guidelines on disability and the duty to accommodate (Toronto: Queen’s Printer for Ontario, 2000), online: Ontario Human Rights Commission 

[33] See section 7.1 on the duty to accommodate for more information.

[34] Third-party requirements will not always constitute a bona fide requirement. See International Union Of Operating Engineers, Local 793v Sarnia Cranes Limited [1999] OLRD No 1282 [QL]; United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 v Mechanical Contractors Association of Sarnia (Drug and Alcohol Policy Grievance), [2008] OLAA No 621 (QL) at para 136; Mechanical Contractors Assn Sarnia, 2013, supra note 29. The latter decision was upheld on appeal in Mechanical Contractors Assn Sarnia, 2014, supra note 29. Drug and alcohol testing policies may be justifiable to meet U.S. Department of Transportation regulations for bus or truck drivers who do cross-border driving, but people who test positive must still be accommodated to the point of undue hardship. See Milazzo v Autocar Connaisseur Inc et al, 2003 CHRT 37 (CanLII) [“Milazzo”].  

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