In Canada, workplaces are increasingly implementing drug and alcohol testing. The Canadian law is yet to catch up with these latest developments due to the absence of any regulations permitting or prohibiting these types of tests. Labour courts and arbitrators establish rules using the case law criteria. Proponents of drug testing argue that it promotes security and safety in a workplace. Although drug testing is a legal grey area in Canada, the employers are still expected to comply with the Canadian Human Rights Act. Most of the cases lodged against employers on the issues of drug testing have used the Act in their defense. Below are some of the conflicts that may rise when an employer conducting a drug test at their work place.
The Canadian Human Rights Act
This Act prohibits anyone from discrimination based on perceived or existing disability. Existing or previous dependence on alcohol is considered as a disability by this Act. Furthermore, the Act makes it illegal to discriminate any individual on the basis of their real or perceived possibility that they can develop alcohol and drug dependence in future. Another challenge is that a drug test does not effectively measure impairment at the time the test is carried out, making it a discriminatory practice on the basis of disability and perceived disability. However, a drug test may not violate human rights, if employees are in a safety-sensitive position whereby incapacitation by drug or alcohol can result in significant or direct injury to the worker, environment or others. The sensitivity of the job must take into consideration the context of the industry and the direct involvement of the employee in this high-risk function and checks and balances in the place of work.
Bona Fide Occupational Requirement
The human rights law in Canada stipulates that alcohol and drug testing are discriminatory practices. However, employers can justify their use if they are considered Bona Fide Occupational Requirement (BFOR). Previous court cases have outlined the difference between drug and alcohol tests. For instance, a breathalyzer test for alcohol determines the level of impairment in an individual during the time it is conducted. When applied at a workplace, the test can determine if a person if fit to carry out their duties. On the other hand, urinalysis, which is drug test, cannot effectively measure the level of intoxication in an individual at the time it is carried out, but only detects past use. However, an employer can conduct drug and alcohol testing as a part of a broader medical assessment program and treat it as an occupational requirement at the workplace.
Pre-employment alcohol and drug testing must be treated as a form of medical examination. Just like other forms of enquiries or medical evaluations related to employment, it is also limited to determining the ability of the individual to carry out the essential job requirements. This test cannot be used as a basis to deny an employee a chance in a workplace due to their past drug or alcohol use.