Ontario Human Rights Commission releases updated policy on drug and alcohol testing

The Ontario Human Rights Commission (OHRC) recognizes that it is a legitimate goal for employers to have a safe workplace. Safety at work can be negatively affected by many factors, including fatigue, stress, distractions and hazards in the workplace. Drug and alcohol testing is one method employers sometimes use to address safety concerns arising from drug and alcohol use. Drug and alcohol testing has particular human rights implications for people with addictions. Addictions to drugs or alcohol are considered "disabilities" under the Ontario Human Rights Code (code).

The code prohibits discrimination against people with disabilities and perceived disabilities in employment, services, housing and other social areas.

Drug and alcohol testing policies and programs may be discriminatory based on addictions or perceived addictions. They raise human rights concerns where a positive test leads to negative consequences for a person based on an addiction or perceived addiction, such as automatic discipline or inflexible terms and conditions on a person’s job, not accommodating people to the point of undue hardship, or not respecting people’s dignity and confidentiality through the testing process.

If drug and alcohol testing policies and programs discriminate against people based on addictions or perceived addictions, they may be justifiable if an employer can show that testing provisions are bona fide (legitimate) requirements of the job. However, employers should take a proactive approach to workplace drug and alcohol testing. Where these policies are necessary to achieve safety, employers should design them to avoid potential discriminatory impacts. Following the test for bona fide requirements laid out by the Supreme Court of Canada, policies should be:

1. Adopted for a purpose that is rationally connected to performing the job

2. Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose

3. Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.

The primary reason for conducting drug and alcohol testing should be to measure impairment, as opposed to deterring drug or alcohol use or monitoring moral values among employees. Even testing that measures impairment can be justified as a bona fide requirement only if it is demonstrably connected to performing the job (for example, if an employee occupies a safety-sensitive position and after a significant accident or "near-miss"), and only then as part of a larger assessment of drug and alcohol addiction. By focusing on testing that actually measures impairment, especially in jobs that are safety-sensitive, an appropriate balance can be struck between human rights and safety requirements, both for employees and the public.

Following a positive test, employers should offer a process of individualized assessment of drug or alcohol addiction and must accommodate employees with addictions to the point of undue hardship. If employers or drug and alcohol testing policies treat recreational (or casual) users as if they are people with addictions and impose consequences on this basis, they may be prima facie discriminatory (discrimination on its face) based on "perceived disability."

A drug and alcohol testing policy that respects human rights and may be justifiable under the code is one that: 

• Is based on a rational connection between the purpose of testing (minimizing the risk of impairment to ensure safety) and job performance

• Shows that testing is necessary to achieve workplace safety

• Is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored

• Is used only in limited circumstances, such as for-cause, post-incident or post-reinstatement situations

• Does not apply automatic consequences following positive tests

• Does not conflate substance use with substance addiction

• Is used as part of a larger assessment of drug or alcohol addiction (for example, employee assistance programs, drug education and awareness programs and a broader medical assessment by a professional with expertise in substance use disorders or physician that provides a process for inquiring into possible disability)

• Provides individualized accommodation for people with addictions who test positive, to the point of undue hardship

• Uses testing methods that are highly accurate, able to measure current impairment, are minimally intrusive and provide rapid results

• Uses reputable procedures for analysis, and

• Ensures confidentiality of medical information and the dignity of the person throughout the process.

For more information, visit the OHRC's website.