On-the-job testing should be administered only where a link has been established between impairment and performance of job functions, such as in the case of employees who are in safety-sensitive positions. Once again, because drug tests do not actually measure impairment, random drug testing is an unjustifiable intrusion into the rights of employees. With respect to random alcohol testing, the use of breathalysers is a minimally intrusive yet highly accurate measure of both consumption and actual impairment. Consequently, the OHRC supports the view that random alcohol testing is acceptable in safety-sensitive positions, especially where the supervision of staff is minimal or non-existent, but only if the employer meets its duty to accommodate the needs of those who test positive (see below).
“For cause” and “post incident” testing for either alcohol or drugs may be acceptable in specific circumstances. Following accidents or reports of dangerous behaviour, for example, an employer will have a legitimate interest in assessing whether the employee in question had consumed substances that are psychoactive and which may have contributed to the incident. The results of the assessment may provide an explanation of the cause of the accident. Such testing should only be conducted as part of a larger assessment of drug or alcohol abuse. This larger assessment could include a broader medical assessment under a physician’s care where there are reasonable grounds to believe that there is an underlying problem of substance abuse. Additional components of a larger assessment may include employee assistance programs (“EAPs”), peer reviews and supervisory reviews.
Employers should also have regard to the following criteria and considerations when developing on-the-job testing criteria:
Competent handling of test samples
Qualified professionals must perform drug and alcohol testing and the results must be analyzed in a competent laboratory. Further, it is the responsibility of the employer to ensure that the samples taken are properly labelled and protected at all times.
Confidentiality of test results
To protect the confidentiality of test results, all health assessment information should remain exclusively with the examining physician and away from the employee's personnel file.
Review of results with the employee
Procedures should be instituted for the physician to review the test results with the employee concerned.
Mandatory self-disclosure
Where mandatory self-disclosure is a part of a workplace drug or alcohol policy, there must be a reasonable time period within which previous substance abuse will be considered relevant to assessment of current ability to perform the essential duties. The reasonable time period is based on whether the risk of relapse or recurrence is greater than the risk that a member of the general population will suffer a substance abuse problem. Mandatory self-disclosure of all previous substance dependencies, without any reasonable limitation on how long ago these conditions occurred, has been found to be a prima facie violation of employee rights.[21]
Alternative methods
The OHRC supports the use of methods other than drug and alcohol testing (e.g. functional performance testing) where such methods exist, or the development of such tests, where feasible, to assess impairment. The OHRC also encourages the development and implementation of EAPs and peer monitoring.
Consequences of a positive test
Section 17 of the Code requires individualized or personalized accommodation measures. Therefore, policies that result in automatic loss of employment, reassignment or that impose inflexible reinstatement conditions, without regard for personal and individual circumstances, are unlikely to meet this requirement.[22]
Although the emphasis in the Code is on ensuring that persons with disabilities are not treated in a discriminatory manner because of their disability, it is recognized that in some circumstances, the nature and/or degree of a person's disability may preclude that individual from performing the essential duties of a job. Section 17(1) of the Code states that the right to equal treatment in respect of employment is not infringed where an individual is treated differently because she or he is incapable of performing or fulfilling the essential duties of the position because of a disability. Assessment of incapacity must be both fair and accurate.