Pre-employment testing for drug and alcohol use as part of an employment-relatedmedical examination

Testing for alcohol or drug use is a form of medical examination. Therefore, an employer considering such testing should be guided by the three-part test cited above, by the OHRC's Policy on Employment-Related Medical Information ^[20] and by the Ontario Court of Appeal’s decision in the Entrop case. The following are the main principles that should be borne in mind:

1. Employment-related medical examinations or inquiries, conducted as part of the applicant screening process, are prohibited under Section 23(2) of the Code.
2. Pre-employment medical examinations or inquiries at the interview stage should be limited to determining an individual's ability to perform the essential duties of a job.
3. In order to implement a testing program prior to hiring, the employer must therefore be able to demonstrate that pre-employment testing provides an effective assessment of the applicant. Since drug testing cannot be shown to actually measure impairment, pre-employment drug testing should not be conducted. Although there has been no clear indication from the courts, it is the OHRC’s view that, in the absence of clear medical research, pre-employment alcohol testing does not appear to predict an employee’s ability to perform the essential requirements of a safety-sensitive position. All it can do is assess impairment before the person is actually on the job. It is therefore difficult to see how an employer could justify pre-employment alcohol testing.
4. Medical examinations to determine an individual's ability to perform the essential duties of a job should only be administered after a conditional offer of employment has been made, preferably in writing.
5. Where drug or alcohol testing will be a valid requirement on the job, the employer should notify job applicants of the requirement at the time that an offer of employment is made. The circumstances under which such testing might be required should be made clear to the applicant.
6. If the applicant or employee requests accommodation in order to enable him or her to perform the essential duties of the job, the employer is required to provide individual accommodation unless it is impossible to do so without causing undue hardship.

^[20] A copy of the Ontario Human Rights OHRC Policy on Employment-Related Medical Information (1996) is available on the Web at www.ohrc.on.ca, through the OHRC offices and printed in Human Rights Policy in Ontario, supra note 17.