Drug and alcohol testing is prima facie discriminatory under Canadian human rights law.
Employers can nevertheless justify discriminatory rules if they can meet a three-part test:[18]
- the employer has adopted the standard or test for a purpose that is rationally connected to the performance of the job
- the employer adopted the particular standard or test in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose
- the standard or test is reasonably necessary to accomplish that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
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.
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. It should not be directed towards simply identifying the presence of drugs or alcohol in the body.
Drug and alcohol testing that has no demonstrable relationship to job safety and performance has been found to be a violation of employee rights.[19] 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. In this regard, the policy must not be arbitrary in terms of which groups of employees are subject to testing. For example, to test only new or returning employees but not other employees may not be justifiable having regard to the stated objectives of a company's testing policy. At the same time, testing employees in safety sensitive positions only may be justifiable.
Applying the three-part test to drug and alcohol testing, the following questions should be considered by employers, where applicable:
- Is there an objective basis for believing that job performance would be impaired by drug or alcohol dependency? In other words, is there a rational connection between testing and job performance?
- In respect of a specific employee, is there an objective basis for believing that unscheduled or recurring absences from work, or habitual lateness to work, or inappropriate or erratic behaviour at work are related to alcoholism or drug addiction/dependency? These factors could demonstrate a basis for “for cause” or “post incident” testing provided there is a reasonable basis for the conclusions drawn.
- Is there an objective basis to believe that the degree, nature, scope and probability of risk caused by alcohol or drug abuse or dependency will adversely affect the safety of co-workers or members of the public?
[18] See Entrop, supra note 14, citing Meiorin, supra note 13.
[19] See Entrop, supra note 14.