To begin with, we have to note that drug and alcohol testing is considered discriminatory in accordance with Canadian Human Rights Legislation. However, there might be circumstances where such discriminatory practice might be justifiable.

Debates continue on a matter if both occasional and dependent drug/alcohol users are equally protected under human rights legislation. However, the CHRA will consider complaints on discriminatory practices from employees regardless of the fact whether they are addicted or occasional drug/alcohol users.

As we mentioned in our article “Drug and Alcohol Problems”, there are different types of drug and alcohol testing that might be considered as BFOR* – bona fide occupational requirements and might be administered in different circumstances.

In other words, as part of broader medical assessment and support program, drug and alcohol testing is permissible under the following conditions:

1. In safety-sensitive positions where the employer has a reasonable cause to require such testing for the employee. Safety-sensitive jobs are those that are involved in high-risk operations such as pilots, bus or truck drivers etc. Random alcohol testing of employees in non-safety-sensitive positions is inappropriate.
2. Where an incident or accident justifying such testing has occurred or when there are provable performance problems that might be drug- or alcohol-related. Or in a situation where an employee reports for work in an unfit condition.
3. Disclosure of drug or alcohol abuse of employees in safety-sensitive positions and only with provision for further accommodation* to the point of undue hardship*
4. When drug or alcohol testing is part of post-treatment monitoring or a rehabilitation program.

Pre-employment drug and alcohol testing is permissible only in certain circumstances such as:

• the candidate for the job has disclosed his past or present alcohol or drug abuse.
• or, pre-employment medical examination shows reasonable evidence of drug or alcohol abuse.
• in safety-sensitive jobs e.g. bus or truck operations.

Interesting fact: the Canadian Human Rights Act states that “… an employer cannot automatically withdraw offers of employment from prospective employees who fail their drug or alcohol test, without first addressing the issue of accommodation.” Which means that an applicant who agreed to undergo a pre-employment drug or alcohol test can still file a claim of treating unfairly if he or she have been denied employment (or have been withdrawn from the employment) as a result of positive tests.

However, in a situation where after completion of rehabilitation program, an employee in safety-sensitive job continues inappropriate drug or alcohol use, employer’s disciplinary measures up to dismissal might be justified.