Some employers attempt to make alcohol and drug testing mandatory for their employees. This year, the TTC gave the go-ahead to implement random drug and alcohol testing for its employees. What are the legal implications of drug testing in the workplace?

Drug and Alcohol Addictions are Disabilities

The Human Rights Tribunal of Ontario recognizes both drug and alcohol addictions as disabilities under the Human Rights Code (“Code”). Where an employee suffers from a disability, an employer has a duty to accommodate that employee to the point of undue hardship. Employees who experience addiction may require time off for treatment or changes to their position. Employers who terminate or treat employees differently because they have a substance addiction may violate the employee’s rights under the Code.

Random alcohol or drug testing can negatively affect an employee suffering from an addiction. For example, if an employer disciplined an employee after testing positive. For this reason, the Ontario Human Rights Commission states that random drug and alcohol testing is generally discriminatory and can only be used in limited circumstances.

In 2013, the Supreme Court of Canada considered this issue. The Court concluded that “in a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions.” Otherwise, the Supreme Court found that a random alcohol or drug test is generally not permitted.

Lessons for Employees:

1. Many employees are afraid to disclose substance abuse problems to their employer. However, the Code specifically protects those with alcohol or drug addiction from harassment and discrimination. Further, if an employer refuses to accommodate a disability, employees may be entitled to monetary compensation.
2. It is extremely difficult for an employer to justify random drug testing.
3. If an employer subjects you to drug or alcohol testing, you should consult an employment and human rights lawyer to determine what actions to take.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.