Drug and alcohol use: Understanding testing and dismissals

Exclusive to Canadian HR Reporter from Rudner Law.

As employment lawyers, we frequently get questions from safety-conscious employers about impairment on the job and how to address employee drug and alcohol use.

For example, can an employer require an employee to submit to a drug or alcohol test before they start work for the day? Also, if the test shows impairment, can the employer dismiss the employee for cause, on the spot?

The answer to both of these questions can sometimes be “yes” accompanied by the common refrain in employment law: “It depends”.

This topic is impacted by an employer’s obligation to operate a healthy and safe work environment as well as their duty to accommodate disabilities such as addiction. Despite the complexity, an employer may take steps to provide a safe workplace while also ensuring that employee rights are protected.

Implementing random testing

Requiring each employee to test before starting work each day does not appear to have been addressed in the law. Instead, interpretation of the law has been confined to assessing when a random breathalyzer test is permitted.

The purpose of testing is to assess whether an employee is fit for duty and that the employee is not impaired at the time, not to determine whether the employee consumes various substances. Accordingly, an employer may only test for alcohol, to identify immediate impairment. Drug tests do not measure impairment; they only disclose the presence of substances in an individual’s system.

To be lawful, a number of criteria must be met:

• The position must be safety sensitive, so impairment would impact employee ability to work.
• There must be minimal or non-existent staff supervision.
• There is evidence of risk in the workplace (meaning there is a history of people coming to work impaired).
• The employer observes its duty to accommodate any individual with an addiction who fails a breathalyzer.

The employer’s testing protocol must be supported by a clear, written policy which outlines:

• when testing will be conducted
• to whom the policy will apply
• the consequences of a failed test.

If the policy indicates that dismissal is the consequence of a failed test, this is not free reign for the employer to dismiss for cause. Instead, the employer must perform a contextual analysis of the situation and assess whether there was cause to dismiss. The policy must also make it clear that accommodation remains available.

Dismissal for cause for impairment

So an employee has failed a random breathalyzer and is impaired at work. The employer may dismiss the employee for cause, right? Not necessarily. A dismissal for cause is described as the “capital punishment” of the employment relationship. If an employer can show that it had cause to dismiss an employee, the employer has no further obligation to the employee, apart from potentially paying the employee's statutory entitlements under the relevant employment standards legislation.

Because the consequences of a dismissal for cause have such a strong impact on the employee, a court will closely assess the employer’s reason to dismiss, using a contextual analysis. This is a review of the employee's history with the employer, the employer’s treatment of similar incidents, and the incident. 

Generally, for cause to be established there have to be serious safety concerns with respect to the impaired employee and the specific incident. This is material if the employee has no history of similar misconduct.

Criteria the court will consider in determining whether a dismissal was justified include:

• whether the conduct put others at risk of serious injury or death
• whether this violated safety rules, especially if these relate to the employer observing its statutory safety obligations
• whether this conduct breached the employer’s policies.

Where one or more of these criteria are met, the employer will find itself in a stronger position to proceed with a dismissal for cause.

An employer should have clear policies and rules about impairment, safety, and expectations. These policies demonstrate that being impaired in the workplace is unacceptable. These policies must be distributed to employees and each employee must acknowledge their receipt of the policy in order for the policy to be enforceable. If these steps are followed, the employee will be deemed to have been aware of the policy and the consequences for breaching it, such as dismissal for cause.  

Conclusion

Addressing substance use and impairment in the workplace requires striking a balance between the human rights of the individual with the rights of the group to a safe work environment. In order to do so, an employer must implement policies that ensure employee safety while also minimizing the impact of these policies on employee rights. It can do this by ensuring that the process for requesting reasonable accommodation is well known and straightforward for an employee to follow.

Failing to do this, and improperly implementing testing or proceeding with a cause dismissal without considering the context of the impairment can create serious repercussions for an employer. A poor testing protocol can breach employee rights, leading to a claim of constructive dismissal or a breach of the employee's human rights.

Rushing to dismiss after an employee is found to be impaired at work can lead to a claim of wrongful dismissal, bad faith conduct on the part of the employer, or a breach of the employee's human rights. All of this can be avoided, or at least the risk of a negative outcome lessened by considering the correct steps to take and consulting with counsel before making a decision.

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].