Pre-employment drug testing in Ontario is generally not permissible; The Ontario Human Rights Commission (“OHRC’) has stated that: “Since drug testing cannot be shown to actually measure impairment, pre-employment drug testing should not be conducted. It is the OHRC’s view that, in the absence of clear medical research, pre-employment alcohol testing does not appear to predict an employee’s ability to perform the essential requirements of a safety-sensitive position. All it can do is assess impairment before the person is actually on the job. It is therefore difficult to see how an employer could justify pre-employment alcohol testing.”
In order to justify drug testing, an employer must meet the following three-part test:
- The employer has adopted the standard or test for a purpose that is rationally connected to the performance of the job;
- The employer adopted the particular standard or test in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
- The standard or test is reasonably necessary to accomplish that legitimate work-related purpose.[i]
As a result, only employees in “safety-sensitive” positions may be tested for drugs. Drug testing should be limited to determining actual impairment of an employee’s ability to perform or fulfill the essential duties or requirements of the job. It should not be directed towards simply identifying the presence of drugs or alcohol in the body. If the testing has no demonstrable relationship to job safety and performance, then it is a violation of the employee’s human rights. Where drug testing will be a valid requirement of the job, the employer should notify job applicants at the time the offer of employment is made.
In most circumstances, drug testing is probably not worth the risk of a human rights claim. Even if the employer meets the threshold for drug testing, in the event that the test comes back positive, the employer has accommodation duties. Unless the accommodation would cause undue hardship upon the employer; this duty requires the employer to work together with the employee to permit the employee to work despite having a drug problem, and the employer would have to make attempts to try to facilitate rehabilitation.
Dale & Lessmann LLP is a full service business law firm in Toronto, Ontario, Canada.
Christina J. Wallis is a Partner practising civil litigation with a focus in Employment Law at Dale & Lessmann LLP. To speak to Christina please call 416-369-7832 or email her at email@example.com
Phaydra Falkner is a Corporate and Employment Law Lawyer at Dale & Lessmann LLP. To speak to Phaydra please call 416-369-3812 or send an email to her at firstname.lastname@example.org