Written on behalf of Peter McSherry
On October 23, 2016, the Ontario Human Rights Commission (OHRC) launched an updated policy on workplace drug and alcohol testing. Drug and alcohol testing of employees is controversial and contentious, and involves a balance of human rights, privacy rights, the rights of an employer to manage their workplace, and the right of all employees to a safe workplace. The OHRC’s newest policy is intended to provide guidance on drug and alcohol testing to both employers and employees, and highlight possible human rights concerns pertaining to testing. The policy provides best practices for employers on how to manage their responsibilities while respecting the human and other rights of employee’s, particularly those who may have drug or alcohol addictions.
Chief Commissioner Renu Mandhane has stated
“We all want to work in a safe environment and employer have a legal obligation to provide one. This policy shows how employers can develop drug and alcohol policies that meet health and safety concerns and respect human rights”
Addictions to both drugs or alcohol are considered “disabilities” under the Ontario Human Right’s Code (the Code), and anyone with a past, current, or even perceived addiction to drugs or alcohol is protected from discrimination in the workplace. Drug and alcohol testing policies have discriminatory effects on and significant human rights implications for people with addictions.
These policies can be discriminatory if a positive test results in negative consequences to an employee. Such negative consequences can include: automatic discipline, failure to accommodate the addiction, or failure to respect confidentiality throughout the testing process.
In what Circumstances can workplace drug and alcohol testing occur?
Even where drug and alcohol testing policies are found to be discriminatory, they can be justifiable where an employer can establish that the testing is a bona fide (i.e- legitimate) requirement of the job for safety purposes.
Where a drug and alcohol testing policy is required to maintain a safe workplace, employers should take a proactive approach to implementing and carrying out the testing, and design policies so that they avoid or eliminate potential discrimination.
Pursuant to the new policy, drug and alcohol testing policies that are justifiable under the Code are those that:
- Are based on a rational connection between the purpose of the testing (i.e- minimizing safety risks) and the job or workplace
- Are necessary in order to achieve or maintain a safe workplace
- Are enacted only after less intrusive methods of detecting impairment have been attempted
- Do not apply automatic consequences (such as discipline or termination) if there is a positive test
- Understand the difference between substance use and substance addiction
- Provide specific and personalized accommodation for employees with addictions who test positive (to the point of undue hardship)
- Ensure confidentiality of medical information and respect the dignity of those being testing throughout the process.
Why is this new OHRC policy important?
One of the OHRC’s mandates is to advance a progressive understanding and interpretation of the rights protected by the Code. The OHRC regularly releases policies providing guidance on interpreting the Code, and set guidelines and best practices on how employees and employers should comply with it. OHRC policies are well respected by the courts and by the Human Rights Tribunal of Ontario, and have been regularly referenced in decisions by both judges and other adjudicators.