In Canada, drug addiction is considered a disability under human rights legislation, such as the Ontario Human Rights Code. As such, persons who suffer from drug addictions are protected from discrimination on the job. Clear as mud, right? Not so fast.
Recreational drug users aren’t protected under the Human Rights Code unless they have a real or perceived addiction. So, what protections do recreational users have under the Human Rights Code? This question is being asked a lot more in light of the recent announcement that recreational cannabis will be legalized in Canada in October of this year. As well, employers and workers alike are asking whether or not drug testing is legal. In this article, we’ll aim to try and clear the smoke-filled air when it comes to drug testing at work.
First, a Disclaimer
This article doesn’t deal with medical cannabis users. They are, of course, protected under the Human Rights Code. While having a prescription for cannabis doesn’t give workers the right to ignore company policies regarding smoking cannabis on the job, it does require an employer to accommodate that employee’s medical needs, up to the point of undue hardship.
Now, the Q & A
Q: Can employers ask workers to take a drug test?
A: The short answer is no. For the most part, drug testing not only violates the Human Rights Code, but may also constitute an infringement on a worker’s reasonable expectation of privacy. However, there are some circumstances in which drug testing is allowed.
Q: What about workers who have safety-sensitive roles?
A: There are some circumstances where drug testing may be permissible. The Ontario Human Rights Commissions states that, “drug and alcohol testing can only be justified in very narrow circumstances – where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work.” So, the onus is on the employer to prove that a job is safety sensitive and that drug testing is essential to the safety of the worker and those around them.
Q: How are safety-sensitive roles determined?
A: If an employer institutes a drug- or impairment testing policy, they must be able to show that the policy is a bona fide occupational requirement. (BFOR). The drug or impairment testing must satisfy the Supreme Court of Canada’s standard for establishing a BFOR:
- Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
- Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
- Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? (to show the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate without imposing undue hardship upon the employer.)
The employer must be able to show that there are inherent risks in the workplace, such as the work being highly dangerous, or the kinds of consequences that may occur as a result of workplace accidents and mistakes. If the employer can prove that a job in the workplace satisfies the above test, then they may be able to institute a drug or impairment testing policy in the workplace.
Q: Are recreational cannabis users protected by the Human Rights Code?
A: Recreational cannabis users are generally excluded from protection under the Human Rights Code if they do not suffer from a present, past or perceived addiction to cannabis. So, users who do not exhibit signs of addiction, or who do not come forward regarding an addiction are not protected from on-the-job discrimination. However, that doesn’t mean that an employer can terminate a worker simply because the worker smokes cannabis recreationally. Smoking cannabis recreationally is not considered cause for termination of employment under the Employment Standards Act or pursuant to the common law. The Ontario Human Rights Commission states:
“following a positive alcohol or drug test, an employee may be individually assessed and found to be a casual user, and not a person with an addiction. As a preferred approach in these situations, employers should consider tailoring any sanctions to the circumstances. Severe or harsh consequences, such as automatic dismissal, may be seen as evidence that the employer’s policy treats the employee as if they have a disability.”
Q: What about people who use other drugs recreationally?
A: As with cannabis, the Human Rights Code does not protect drug users from discrimination unless they suffer from present, past or perceived addictions to drugs and/or alcohol. Many workplaces have policies in place that state that workers are to refrain from engaging in illegal activities during or outside of work during their course of employment. However, proving that a worker is using illicit drugs outside of work can be very challenging for an employer – there are privacy and other practical considerations to take into account. In any case, if a worker is addicted to a drug other than cannabis, they would be protected from discrimination in the context of employment under the Human Rights Code.
Shifting Attitudes for Recreational Cannabis
The way society thinks about recreational cannabis use is changing. Indeed, with the impending legalization of recreational cannabis, it’s certainly becoming more accepted. With this movement comes more grey areas for employers. However, as the use of legal cannabis becomes more widespread, policies and laws will be created in order to ensure that employers and workers have a firm understanding of their rights, including knowledge that the interests of all parties in the workplace are being appropriately accommodated in a safe manner, whether they use cannabis or not.
For further information and case law regarding random drug and alcohol testing in the workplace, read our Legal Review: Suncor’s Random Drug and Alcohol Testing Policy.
Written by Jennifer Miller | Curriculum Development Coordinator
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