CANADIAN HUMAN RIGHTS COMMISSION POLICY ON ALCOHOL AND DRUG TESTING
The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability. Disability includes those with a previous or existing dependence on alcohol or a drug. Perceived disability may include an employer's perception that a person's use of alcohol or drugs makes him or her unfit to work. Because they cannot be established as bona fide occupational requirements, the following types of testing are not acceptable:
Pre-employment drug testing
Pre-employment alcohol testing
Random drug testing
Random alcohol testing of employees in non-safety-sensitive positions. The following types of testing may be included in a workplace drug- and alcohol-testing program, but only if an employer can demonstrate that they are BONA FIDE OCCUPATIONAL REQUIREMENTS:
RANDOM ALCOHOL TESTING OF EMPLOYEES IN SAFETY SENSITIVE POSITIONS: Alcohol testing has been found to be a reasonable requirement because alcohol testing can indicate actual impairment of ability to perform or fulfill the essential duties or requirements of the job. Random drug testing is prohibited because, given its technical limitations, drug testing can only detect the presence of drugs and not if or when an employee may have been impaired by drug use.
DRUG OR ALCOHOL TESTINIG FOR REASONABLE CAUSE OR POST-ACCIDENT: where there are reasonable grounds to believe there is an underlying problem of substance abuse or where an accident has occurred due to impairment from drugs or alcohol, provided that testing is a part of a broader program of medical assessment, monitoring and support.
PERIODIC OR RANDOM TESTING FOLLOWING DISCLOSURE OF A CURRENT DRUG OR ALCOHOL DEPENDENC /ABUSE PROBLEM may be acceptable if tailored to individual circumstances and as part of a broader program of monitoring and support. Usually, a designated rehabilitation provider will determine whether follow-up testing is necessary for a particular individual.
MANDATORY DISCLOSURE OF PRESENT OR PAST ALCOHOL DEPENDENCY/ABUSE: may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures. Generally, employees not in safety-sensitive positions should not be required to disclose past alcohol or drug problems. Under these limited circumstances where testing is justified, employees who test positive must be accommodated to the point of undue hardship. The Canadian Human Rights Act requires individualized or personalized accommodation measures. Policies that result in the employee's automatic loss of employment, reassignment, or that impose inflexible reinstatement conditions without regard for personal circumstances are unlikely to meet this requirement. Accommodation should include the necessary support to permit the employee to undergo treatment or a rehabilitation program, and consideration of sanctions less severe than dismissal. The employer will be relieved of the duty to accommodate the individual needs of the alcohol- or drug-dependent employee only if the employer can show that: 1.
the cost of accommodation would alter the nature or affect the viability of the enterprise, OR 2.
notwithstanding the accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing individualized accommodation or consideration to a worker with an addiction or dependency problem. Cross-Border Trucking and Busing
For companies that drive exclusively or predominantly between Canada and the U.S., not being banned from driving in the U.S. may be a bona fide occupational requirement, provided there is evidence that the continued employment of banned drivers would constitute an undue hardship to the employer. Drivers denied employment opportunities or who face disciplinary or other discriminatory employment consequences in...
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