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6. Handling of tests and results

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

  • Notifying applicants and employees: Where drug or alcohol testing will be a valid requirement on the job, the employer should notify job applicants of the requirement when an offer of employment is made. Employers should make clear the reasons why such medical testing is needed and obtain prior, informed consent. Employers must explain what will happen to the person’s biological specimen after testing.
  • Competent handling of test samples: Qualified professionals must perform drug and alcohol testing, reputable procedures for analysis should be used, and laboratory results must be analyzed in a competent facility. Further, the employer is responsible for making sure that the samples taken are properly labelled and protected at all times.
  • Confidentiality: Although the employer will be advised of the test results, confidentiality of the employee’s medical information should be protected. All health assessment information should remain exclusively with the examining physician and away from the employee's personnel file. Employees should be advised about how their medical information will be kept confidential.
  • An employer is entitled to know that an employee has a disability or medical condition, the person’s restrictions or needs, whether they are able to do the essential duties, and the types of accommodation that may be needed. However, it is not generally entitled to know the person’s confidential medical information, including their diagnosis,[60] unless it clearly relates to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed.[61] In these cases, the person may be asked to co-operate by providing more information, up to and including a diagnosis. The employer should be able to clearly justify why this information is necessary. For more information, see section 13.7 of the OHRC’s Policy on preventing discrimination based on mental health disabilities and addictions.
  • Drug and alcohol testing can reveal information about a person’s health other than drug or alcohol use.[62] Because of the potential for intrusion into people’s dignity and privacy, it is particularly important that test results are handled in a way that maximizes confidentiality. Drug and alcohol testing must not be used for purposes other than testing for the substances explicitly laid out in the employer’s drug and alcohol policy.
  • Review of results with the employee: Procedures should be instituted for a physician with expertise in substance use disorders to review the test results with the employee concerned. The employee should be allowed the opportunity to explain if there are other medical reasons that may have caused a positive result.

[60] Simpson v Commissionaires (Great Lakes), 2009 HRTO 1362 (CanLII), at para 35; Cristiano v Grand National Apparel Inc, 2012 HRTO 991, at para 20; Wall v The Lippé Group, 2008 HRTO 50 (CanLII), [“Wall”]; Mellon v Canada (Human Resources Development), [2006] CHRD No 2; Leong v Ontario (Attorney General), 2012 HRTO 1685 (CanLII); Noe v Ranee Management; 2014 HRTO 746 (CanLII).

[61] A person may have more rigorous obligations with regard to disclosing medical information in the context of litigation. In Hicks v Hamilton-Wentworth Catholic District School Board¸ 2015 HRTO 1285 (CanLII), the HRTO stated at paragraph 17: “Where there is a dispute about the medical status of an employee further medical information may be required and where, as in these circumstances, there is litigation with respect to the dispute the parties will be entitled to much more fulsome disclosure of the medical documentation than might be the case in other circumstances.” See also Fay v Independent Living Services, 2014 HRTO 720 (CanLII).

[62] For example, urinalysis can detect pregnancy, whether the person is using legitimate prescription medications, and/or is being treated for heart disease, bipolar disorder, diabetes, epilepsy or schizophrenia. Nancy Holmes & Karine Richer, Drug Testing in the Workplace (2008) online: Parliament of Canada (retrieved March 10, 2015) at 2.

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