It is obvious that being inebriated or otherwise impaired in the workplace is inappropriate behaviour. The behaviour goes from inappropriate to dangerous when an individual works in a safety-sensitive position. However, it is also the case that drug and alcohol dependencies are insidious enough that it is difficult to separate bad judgement from a disabling addiction.
The issue then is how employers can protect their workplaces from the imposition of drugs and alcohol, while still respecting the rights of their workers. Employment professionals have been wrestling with this issue at least officially since the late 1980s and Arbitrator Picher’s decision of United Transport Union v. Canadian Pacific Limited (Hudgenson grievance) (1987), 31 L.A.C. (3d) 179. In that landmark decision (albeit in the unionized context), Arbitrator Picher found that “where reasonable justification is demonstrated”, an employer may require an employee to submit to a drug test.
This basic formulation has continued up to the present day. Generally speaking, the law (in particular the applicable Human Rights Acts) protect individuals from being discriminated against on the grounds that they have a dependence on drugs or alcohol.
However that law does not protect casual use of drugs and alcohol, or justify the use of drugs and alcohol by addicts at the workplace.
Accordingly, courts and tribunals have found that the following approach will minimize risk to both employers and employees. Obtain employee’s written consent to test them for alcohol and drugs according to the following conditions:
- If you’re in a safety-sensitive industry, have all new employees agree to undergo testing for drugs and alcohol as a condition of employment.
- The law protects only the ability to be at a worksite that is safe, it does not disallow the consumption of drugs on personal time. (Although the consumption of some drugs is obviously illegal.) Random drug testing may disclose past drug use, and thus it is generally not justifiable, although the law is divided on this point.
- Alcohol testing usually only discloses current impairment, so randomized alcohol testing is more permissible. However, it is better if such tests are justified, as below.
- Drug tests may be justified by incidents at work, or by the personal history of an employee. Where an employer has reasonable grounds to believe that an employee is under the influence, or where the employer and the employee have agreed to regular tests as part of an accommodation agreement, such tests are justified.
- Finally, any drug testing should be done in a manner sensitive to the employee’s dignity. Testing should be conducted by professionals in a professional environment.
Andrew Taillon
Cox and Palmer
- Making your employee handbook enforceable - March 26, 2012
- Constructive dismissal part 2: everything has its limits - February 23, 2012
- The debate over moral damages continues - January 20, 2012
