Testing for Drugs and Alcohol in the Workplace – What Employers Should Know
As an employer, what can you do if you suspect an employee is impaired at work?
The short answer? It depends.
It’s not a surprise that impaired workers put themselves and their co-workers at risk of injury…or worse. What’s more complicated is understanding the rules and the tools employers have at their disposal to address workplace impairment.
Canada has no legislation that requires mandatory alcohol and drug-testing in the workplace. Likewise, there are no laws that forbid an employer from testing employees for impairment.
The issue is that testing in the workplace can pit the safety of workers against the human rights of the individual. A number of court cases in recent years show that support for testing employees for alcohol or drugs is not black and white. And with cannabis set to become legal in Canada by next July, it may also become even more complicated and contentious.
Two court cases in recent years illustrate how confusing the issue is.
Irving Pulp and Paper: An employee took the New Brunswick company to court after being singled out for random drug testing. After many appeals resulted in just as many flip-flop decisions, in 2013 the Supreme Court of Canada ultimately ruled that the company was not justified in randomly testing its employees for alcohol, even though it was a safety-sensitive workplace and had a history of drinking being a problem (the company implemented random testing after eight documented incidents between 1991 and 2006).
The decision said that employers are justified in testing particular employees in certain circumstances:
- Where there are reasonable grounds to believe an employee was impaired while on duty;
- Where an employee was directly involved in a workplace accident or significant incident; and
- Where the employee returns to work after treatment for substance abuse.
On the other side…
Suncor Energy: The energy company has been conducting random drug and alcohol testing on workers doing safety-sensitive jobs since 2012. In 2014, Unifor challenged random testing, won the challenge but had it overturned in 2016. The union organization appealed the decision but lost, allowing Suncor to continue testing for drugs and alcohol.
While Suncor appears to have won this round (and there will likely be more rounds), the fact is, random testing at the worksite is much more controversial than non-random testing, where an employee is tested as a result of a specific incident where impairment is suspected.
So, to go back to the original question in this post, what’s an employer to do when it’s suspected an employee is impaired on the job? Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP suggests following some key considerations:
- Undertake a careful assessment to determine if your business is operating in a truly safety sensitive environment.
- Ensure there is a clear understanding of the circumstances under which testing will occur and what it’s expected to accomplish.
- If it’s determined that testing is required, your approach should minimize any invasion of privacy.
- Testing for drugs and alcohol should only be implemented in the workplace as part of a well thought out and carefully considered policy for keeping workers safe.
Other ways to prepare:
- Familiarize yourself with the Human Rights Commission and the labour laws in your province.
- Bring in the experts who know the laws and who know how to deliver the tests, fairly and safely.