Employers have duties under various pieces of legislation including the Occupational Health and Safety Act to ensure their workplaces are safe. Failing to take the necessary steps to ensure safety may result in employers being held criminally liable for safety violations. So, when an employee attends the workplace under the influence of drugs or alcohol, the alarm bells should be ringing. This is especially true for employers who operate safety-sensitive workplaces where employees operate motorized vehicles and/or heavy equipment.
If drug and/or alcohol usage is an issue, an employer may consider implementing testing policies to prevent employees from attending work when such usage could affect their ability to perform the job. This is the moment when I often bring to light the employer’s corresponding duty to ensure that employees are not discriminated based on a prohibited ground under the Ontario Human Rights Code.
It has often come as a bit of a shock to some employers that “addictions” to drug and alcohol are considered “disabilities” under the Human Rights Code (the Code) and that people with such addictions are entitled to the same human rights protection as people with other disabilities. Yet, how is an employer able to determine when the use of a particular substance by an employee becomes an “addiction”? Making this type of determination is fraught with risks. It is therefore imperative that a balance is maintained between the safety goals of employers and the human rights of employees when dealing with substance abuse issues at the workplace.
When are drug and alcohol testing policies permitted? The Ontario Human Rights Commission (OHRC) considers drug and alcohol testing, at first glance, discriminatory and holds that such testing should only be used in limited circumstances. The reason being is that a positive drug or alcohol test result may amount to negative consequences for that employee (i.e. discipline) based on their disability (or perceived disability). However, if the following factors are satisfied, an employer is permitted to implement a testing policy:
- The policy is being adopted for a purpose rationally connected to the performance of the job;
- The policy is being adopted in an honest and good faith belief that it is necessary to fulfil a legitimate work-related purpose (i.e. safety); and
- The policy is reasonably necessary to accomplish the work-related purpose.
If there are less intrusive methods available to achieve the goal of safety, a drug test policy will not be considered “reasonably necessary” and could be found to violate the Code.
A note of caution: even if a testing policy is found to be justifiable, an employer cannot automatically dismiss an employee based on a violation of the policy. The employer must still provide individualized accommodation to those who tests positive to the point of “undue hardship”. Determining appropriate accommodation, in light of workplace factors and the employer’s needs, is a tricky balance. We can help guide you through this process.