On August 20, the National Post reported that Mayor Rob Ford agreed to take a drug and alcohol test as part of his campaign for re-election. The Mayor questioned whether that requirement could be extended to other elected or non-elected public servants.
Whether you are a public servant or not, drug and alcohol testing in the workplace is becoming more prevalent. Do you have to take a drug test for your job?
The Human Rights Tribunal of Ontario has recognized both drug and alcohol addiction as a disability under the Human Rights Code. Where an employee suffers from a disability, an employer has a duty to accommodate that employee to the point of undue hardship. We see many employees who are experiencing or recovering from alcohol addiction and need assistance dealing with their employers to obtain time off for treatment or to make changes to their position.
Random drug or alcohol testing could negatively affect an employee suffering from an addiction if there were employment discipline associated with testing positive for drugs or alcohol. For this reason, the Ontario Human Rights Commission’s Policy on Drug and Alcohol testing states that random drug and alcohol testing is generally discriminatory and can only be used in limited circumstances.
In late 2013, the Supreme Court of Canada considered this issue.The Supreme Court concluded that “in a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions.” In a dangerous workplace, the employer does not need to show that other measures have been exhausted if the employer reasonably believes an employee is impaired on duty, has been in a workplace accident or a significant incident, or if the employee is returning to work after substance abuse treatment. Otherwise, the Supreme Court held that random drug testing for employees in safety sensitive or other positions is generally not permitted.
The Supreme Court case reinforced the understanding that it is extremely difficult for an employer to justify random drug testing.
For more information about disability and your human rights, see here.
If you have experienced discrimination at work because of a disability or are being subjected to drug and alcohol testing, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
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