The legalization of recreational cannabis on October 17, 2018, left many employers wondering if they can drug test their employees. Impairment from cannabis use is a safety risk, but for most employers, performing drug tests to manage the risk is not an option.
Can Employers Submit Employees to Drug Tests?
The short answer is no. For the most part, drug testing not only violates the Human Rights Code, but it is also a gross infringement on a worker’s reasonable right to protection of privacy.
Employers still need to fulfill their general duty under the Occupational Health and Safety Act (the Act) to keep workers safe from hazards, including those resulting from impairment. As such, it may be tempting to use drug testing as a means to ensuring that you’re fulfilling your general duty. However, in Canada, most workers are protected from drug testing. In many cases, employers may not test for drugs, including for the presence of recreational cannabis, alcohol, and other drugs – legal and illegal.
Employers have the right to expect employees to arrive at work fit for duty and remain that way throughout the duration of their shift. Communicating this expectation to workers is important and, at a minimum, should be communicated by implementing a Workplace Substance Management Policy that makes the employer’s expectations around impairment clear. This is especially important for employers that have safety-sensitive roles within their organizations.
When Drug Testing May Be Permissible
There are some circumstances in which drug testing is allowed, though they are rare and very specific.
1. Extremely dangerous workplaces: Universal random drug testing would only be acceptable in workplaces that can be shown to be extremely dangerous and where a worker’s impairment would likely result in catastrophe. For example, airline pilots.
2. Reasonable Suspicion of Impairment: If an employee appears to be obviously impaired, drug testing may be permissible, especially if they’re involved in an incident or near-miss. For example, if a lift truck operator is involved in a collision and there is reasonable suspicion that they are intoxicated, performing a drug test may be acceptable.
3. As part of a rehabilitation/return-to-work program: An employee with substance abuse disorder may be subject to random drug testing to be carried out as part of a rehabilitation program and return to work program. For example, it would be acceptable to drug test an employee that is returning to work from a leave where they were treated for addiction as part of an agreed-upon return to work program.
4. Evidence of reasonable cause: Drug or alcohol testing must be supported by evidence of reasonable cause. For example, evidence of a history of widespread alcohol or drug abuse in the workplace would be reasonable cause to subject employees to drug testing.
The Irving Case
The Irving case has set the tone for the Human Rights Tribunal’s beliefs around workplace drug testing and the workers’ rights to privacy. In Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp and Paper LTD., 2013 SCC 34, a unionized paper mill instituted a policy of randomized testing (for alcohol impairment, not drugs). Perley Day was tested, and having not consumed alcohol since 1979, blew a 0. However, through his union, Day filed a grievance challenging the reasonableness of the testing. An arbitration board agreed with the union and determined that there was insufficient evidence to support such invasive testing. Later, the Supreme Court of Canada upheld the decision on appeal.
Employers who want to implement random drug testing programs should analyze the need for such testing. They would need to demonstrate a need due to safety-sensitive roles or with evidence that on-the-job impairment is a genuine issue among the majority of the workforce.
Other Recreational Drugs
As with recreational cannabis, the Human Rights Code doesn’t protect people who may abuse other drugs from discrimination unless they are perceived to be addicted to a substance. Many workplaces have policies in place that state that workers will not engage in illegal activities. However, proving that a worker is using illicit drugs outside of work would be very challenging. For example, you may not test a worker who you suspect is using cocaine, simply because it’s an illegal drug or one that may result in a dangerous state of impairment. Training managers and supervisors to recognize signs of impairment resulting from cannabis, alcohol, other drugs, or other reasons is a key component in a Workplace Substance Management Program.
Training for Managers and Supervisors
All workers should have training in how the use of substances may cause impairment in the workplace, including how hazards resulting from impairment can impact safety on the job. Drug testing is not feasible in most situations, so it would better serve managers and supervisors to receive additional training on identifying the signs of impairment, what to do when there is suspected impairment, and how to help support workers dealing with addiction by providing them with information or resources.
- There are very few circumstances where drug testing workers in Canada is acceptable
- Drug testing may be allowed in a few rare circumstances such as:
- In extremely dangerous workplaces
- When there is reasonable suspicion of impairment
- As part of a rehabilitation/return-to-work program
- Where there is evidence of reasonable cause
- Training managers and supervisors on how to recognize impairment is an acceptable solution for identifying impaired individuals in the workplace that does not involve drug testing
OSG Can Help
Update your Policy
Every employer should have updated their employee policies to address recreational cannabis. Our Workplace Substance Management Policy template makes it easy to update your policy. Simply download our template, add your organization’s specifics to the existing template, and your policy will be ready to go.
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 Filsinger, K.J. (2015). Consulting Editor: Daryn M Jeffries, Filion, Wakely Thorup Angeletti LLP. Employment Law for Business and Human Resources Professionals. 3rd. Toronto: Emond Montgomery Publications. Page 149  Filsinger, K.J. (2015). Consulting Editor: Daryn M Jeffries, Filion, Wakely Thorup Angeletti LLP. Employment Law for Business and Human Resources Professionals. 3rd. Toronto: Emond Montgomery Publications. Page 148