Drug testing is being implemented more and more in workplaces. The subject is naturally controversial given the need to balance the employer’s obligation to maintain a safe workplace with the employee’s right to privacy and other human rights.

In Canada, mandatory drug testing is a grey area. Currently, there is no law requiring or prohibiting drug testing in workplaces. Contrast this with the trucking industry in the US where regulations require motor-carriers to have extensive mandatory drug testing policies.

Canadian employers can legally implement limited policies under their duty to ensure a safe work environment so long as they are reasonable and non-discriminatory. Testing for “safety-sensitive” positions that occurs based on objective signs of impairment or after a safety incident is more likely to be allowed.

Two of the more controversial areas are pre-employment testing and random testing.

Pre-employment testing engages human rights principles, as an employer cannot discriminate against an employee (or potential employee) based on an actual or perceived medical disability, including substance use disorder. In Milazzo v. Autocar Inc., 2003 CHRT 37, a bus driver filed a human rights complaint when his application was automatically rejected after he failed a pre-employment drug test. The Tribunal ruled the policy discriminated against candidates who were drug-dependent since anyone who tested positive wasn’t hired. The employer had a duty to refer positive testers for assessment and accommodate any substance use issues to the point of undue hardship. A similar screening policy was found discriminatory in Alberta v. Kellogg, 2007 ABCA 426 where an applicant tested positive for marijuana and was not hired. The Court said the employer could have accommodated positive-testing employees without undue hardship by implementing grace periods, re-takes, and offering drug counselling.

Carefully tailored pre-employment drug testing was approved in a 2018 arbitration decision involving BC Hydro and the International Brotherhood of Electrical Workers union. The arbitrator held that pre-employment testing for safety-sensitive positions was allowed because it balanced the rights of potential employees — applicants had up to five days to be tested and if they failed, they could withdraw from the posting but reapply in the future or be assessed by a professional at their own cost.

The authority on random drug testing is CEPU, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”). Here, the Supreme Court of Canada held that testing is permitted in dangerous work environments in only two scenarios. First, “for cause” testing may occur where i) there are reasonable grounds to believe an employee is impaired by drugs; ii) after an accident or other safety incident; or iii) as part of a return-to-work agreement. Second, random drug testing is allowed only if the employer demonstrates a generalized problem of drug abuse at the workplace.

The Court in Irving was clear that even in safety-sensitive workplaces, random drug testing of the entire workforce is not permissible. In that case, eight alcohol-related incidents over 10 years was not sufficient to justify it. More recently in Alberta, Suncor (a large oil and gas employer) implemented random testing in response to a rampant drug problem at its Fort McMurray facility. The union fought the policy and after several years of litigation, the parties ultimately agreed on a program, which included random testing at that facility only.

There is recent trend toward negotiated drug testing policies. For example, the Construction Labour Relations Association and BC Building Trades negotiated an industry-wide policy that applies to all unionized construction workers in B.C. and is used as an example for private and public sector workplaces.

The topic of drug testing remains controversial as parties continue to struggle with balancing competing obligations. In the absence of definitive legislation, we are likely to see a continuing trend toward sectorial policies to give certainty to employers and employees.