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Canadian Human Rights Commission’s Policy on Alcohol and Drug Testing
October 2009
This Policiy is also available in .pdf format
For any questions about the policy, please contact us by email.
Table of Contents
- References
Applicable Sections of the Canadian Human Rights Act
Applicable Legal Decisions
Canadian Human Rights Commission’s Policy on Alcohol and Drug Testing
The Commission recognizes that the inappropriate use of alcohol or drugs can have serious adverse effects on a person’s health, job performance and workplace safety. Safety is important to employees and employers. However, safety must be ensured in ways that do not discriminate against employees on the basis of a prohibited ground of discrimination. Workplace rules and standards that have no demonstrable relationship to job safety and performance have been found to violate an employee’s human rights.
This policy focuses on the proper and improper use of employment related drug and alcohol testing. The Commission recognizes that the issues surrounding alcohol and drug abuse are complex, including the causes and effects of alcohol and drug use, the high co-occurrence of addictions and mental illness, and the challenges and stigma facing those who are dependent. Addressing these issues is important, but fall outside the scope of this policy.
Impairment may result from a variety of conditions, most of which are unrelated to the consumption of drugs or alcohol. If impairment is a concern in the workplace – whether impairment is due to stress, anxiety, fatigue or drug/alcohol use – an employer should focus on ways of identifying and minimizing potential safety risks, including employee assistance programs, drug education and health promotion programs, off-site counselling and referral services, and peer or supervisor monitoring.
The objective of this policy is to clarify the rights and responsibilities of employers, employees, and job applicants regarding employment-related drug and alcohol testing. It sets out the Commission’s interpretation of the human rights limits on drug and alcohol testing programs, and provides practical guidance on compliance with the Canadian Human Rights Act.
This policy is subject to decisions by human rights tribunals and the Courts, and should be read in conjunction with those decisions and the Act. This policy is not a substitute for legal advice. Any employer considering adopting a drug and alcohol testing program should seek legal guidance on this issue.
In accordance with current case law on the issue of drug and alcohol testing1, and consistent with the Act’s prohibition of discrimination on the ground of real or perceived disability, drug and alcohol testing are prima facie discriminatory2.
Given that a drug test cannot measure impairment at the time of the test, requiring an employee or applicant for employment to undergo a drug test as a condition of employment may be considered a discriminatory practice on the ground of disability or perceived disability.
Requiring an employee in, or an applicant for, a safety-sensitive position3 to undergo alcohol testing as a condition of employment may be acceptable, given that alcohol testing can measure impairment at the time of the test, but only if the employer accommodates the needs of those who test positive and who are determined to be dependent on alcohol.
Footnotes
1. See overview of relevant caselaw in the Reference section of the Policy.
2. Entrop v. Imperial Oil, [2000] 50 O.R. (3d) 18 C.A.
3. A safety-sensitive position is one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment. When determining whether a job is safety sensitive, one must consider the context of the industry, the particular workplace and an employee’s direct involvement in a high-risk operation. Any definition must take into account the role of properly trained supervisors, and the checks and balances present in the workplace.
