In the Canadian manufacturing industry, a workplace drug and alcohol policy can be a key feature of an employer’s health and safety program. Many manufacturers rely on testing to detect and deter employee impairment that might otherwise lead to accidents and injuries.
Under Canadian health and safety laws, an employer must take all reasonable steps to protect employees in the workplace. Nonetheless, workplace drug and alcohol testing must balance an employer’s goal of creating a safe workplace and an employee’s rights to privacy and to be free from discrimination. Testing rules are typically set out in an employer’s drug and alcohol policy, which should be clear about when an employee would be asked to submit to a test.
Canadian jurisdictions have not been consistent regarding the extent to which pre-employment testing is permissible. Ontario has generally forbidden the practice. Alberta arguably has taken a more permissive approach.
The reason for the divided landscape relates to the concern that a pre-employment-testing regime could be used to unlawfully discriminate against people with addiction-related disabilities. For this reason, an employer may be wary of implementing pre-employment testing because it may trigger an accommodation obligation before a candidate has begun employment.
Given the inconsistent and unsettled state of the law, manufacturers pursuing such a practice may want to consider:
- Adopting a pre-employment-testing regime only as necessary to promote legitimate workplace safety objectives.
- Designing a pre-employment-testing regime that does not automatically disqualify any candidates who test positive or that, at a minimum, contemplates the possibility that in appropriate circumstances, candidates can overcome a positive test to secure employment.
The threshold for justifying random employee testing is high. For random testing to be a reasonable intrusion on employee privacy, courts have required that:
- Employees subject to random testing occupy “safety-sensitive” and “inherently dangerous” positions.
- There must be evidence of an enhanced safety risk, such as a general workplace problem of substance abuse, and less-invasive efforts to remedy the issue have been unsuccessful.
- The method chosen to implement random testing is proportional in that it achieves or is likely to achieve the goal of workplace safety while also being minimally invasive of the employee’s privacy.
Random testing of the general employee population in positions that are not safety-sensitive is essentially prohibited. So an employer will likely want to ensure it has different drug and alcohol testing procedures for each sector of the manufacturing plant, based on the risk to the safety of the employee, other workers or third parties.
Testing of an employee may be allowed in specific cases when there is reasonable cause to believe the employee is impaired by drugs or alcohol while on duty or is unable to work safely due to impairment from alcohol or drugs.
Employers may consider implementing a policy that requires a supervisor who intends to direct an employee to undergo drug and alcohol testing based on the manager’s observations to seek a second opinion from another supervisor or another person in a position to observe the employee. This second person would attempt to observe the employee for signs of impairment.
If reasonable cause is established, this category of testing is justified as protecting legitimate workplace safety objectives, which are put at risk by present impairment. So an employer may want to consider carrying out the testing procedures for reasonable-cause impairment as soon as possible after observing and confirming signs of impairment.
Additionally, an employer may want to include in its policies addressing reasonable-cause drug and alcohol testing a statement that a refusal to undergo testing will be treated as a positive test or is otherwise subject to disciplinary action.
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A manufacturer may also test an employee who was involved in a workplace incident. Post-incident testing requires assessing whether:
- There is reasonable cause to suspect that an employee involved in a workplace incident may have been impaired by drugs or alcohol.
- The appropriate balancing of employee and employer rights and interests demonstrates that the need for drug or alcohol testing outweighs the employee’s privacy interests.
In its policy, a manufacturer should consider specifying that the meaning of “incidents” relates to risks specific to its workplace, which could include circumstances that caused or had the potential to cause:
- Personal injury.
- Lost working or production time.
- Property damage greater than a nominal amount.
An employer may want to ask the employee and witnesses for an explanation of the incident and consider before ordering a test whether there is a reasonable explanation that does not involve employee impairment.
Return-to-work testing for an employee who has previously breached a drug and alcohol policy is generally accepted as reasonable. As part of an employee’s rehabilitation program, a policy requiring return-to-work testing may involve regular or random alcohol or drug testing for a specified period.
In developing and implementing a drug and alcohol policy, a manufacturing employer in Canada may want to ensure that:
- Testing—other than reasonable-cause testing—occurs only when there is a critical issue that needs to be addressed, such as a threat to safety and the possibility of employee impairment.
- The decision to test is made only after considering all contextual factors.
- Managers and supervisors are trained on the testing regime, including how to identify reasonable cause to believe there is present impairment.
- Policies are tailored to the legitimate safety objectives of the workplace and are responsive to specific workplace concerns based upon documented evidence.
Stephen Shore is an attorney with Ogletree Deakins in Toronto. Michael Lee is a summer associate with Ogletree Deakins in Toronto.