4. Dependent and Recreational Users of Drugs and Alcohol under the Canadian Human Rights Act

The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability⁴.  Disability includes a previous or existing dependence on alcohol or a drug⁵. Further, the Act also prohibits discrimination based on the actual or perceived possibility that an individual may develop a drug or alcohol dependency in the future⁶.

In 2003, the Canadian Human Rights Tribunal released a decision, Milazzo v Autocar Connaisseur, which distinguished between casual or recreational drug users and dependent drug users, finding that only dependent drug users have a disability and are therefore afforded protection under human rights law⁷. The Tribunal notes that “the onus is on the employee or prospective employee to demonstrate that they are entitled to the protection of the CHRA”. According to the Tribunal, employees can prove that they are dependent users of alcohol or drugs, “by submitting to a professional assessment by an appropriate health care practitioner”.

Similarly, a more recent case from the Alberta Court of Appeal, Alberta (Human Rights and Citizenship Commission) v Kellogg, Brown & Root⁸, found that recreational users of drugs  were not entitled to protection under human rights legislation.

Despite these decisions, the issue of whether casual or recreational users are protected under human rights legislation is still a matter of debate and has not been settled to a degree of certainty by the Courts.

The Courts have said that the grounds of prohibited discrimination under the Canadian Human Rights Act are to be given a large, liberal and remedial interpretation, and they are to be interpreted and applied in accordance with the purposes they serve. The purpose of Canadian human rights legislation is to protect against discrimination and to guarantee rights and freedoms. With respect to employment, its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which may not affect a person’s ability to do a job. When investigating complaints of discrimination in employment based on disability, the focus is on the effects of the distinction, exclusion or preference by an employer.

Depending on the facts of each case, the Commission will continue to consider complaints from employees who were disciplined or terminated because of a positive drug test, regardless of whether they are recreational or dependent users of drugs.

The Commission may also investigate whether the employer has a policy or practice of drug and alcohol testing, which by its purpose or effect is discriminatory, on the basis of either disability or perceived disability (see section 10 of the Canadian Human Rights Act in the Reference section of the Policy).

5. Drug and Alcohol Testing as a Bona Fide Occupational Requirement

Drug and alcohol testing is prima facie discriminatory under Canadian human rights law. Nevertheless, employers can justify discriminatory practices and rules if they are a bona fide occupational requirement (BFOR).

In Entrop v. Imperial Oil⁹, the Ontario Court of Appeal noted a critical difference between alcohol and drug tests. Alcohol tests such as a Breathalyzer test can determine whether a person is actually impaired at the moment the test is administered. In other words, an alcohol test, if applied to a person while on the job, can tell whether that person is fit to do their job. On the other hand, the Court noted that drug tests such as urinalysis cannot measure whether a person is under the effect of a drug at the time the test is administered. A drug test can only detect past drug use. An employer who administers a drug test cannot tell whether that person is impaired at that moment, or is likely to be impaired while on the job.

If testing is part of a broader program of medical assessment, monitoring and support, employers can test for alcohol in any of the following situations: 

• on a random basis, for employees who hold safety-sensitive positions;
• for "reasonable cause," where an employee reports for work in an unfit state and there is evidence of substance abuse;
• after a significant incident or accident has occurred and there is evidence that an employee’s act or omission may have contributed to the incident or accident; or
• following treatment for alcohol abuse, or disclosure of a current alcohol dependency or abuse.

If testing is part of a broader program of medical assessment, monitoring and support, employers can test for drugs in any of the following situations:

• for "reasonable cause," where an employee reports for work in an unfit state and there is evidence of substance abuse;
• after a significant incident or accident has occurred and there is evidence that an employee’s act or omission may have contributed to the incident or accident; or
• following treatment for drug abuse, or disclosure of a current drug dependency or abuse. (Usually, a physician or substance abuse professional will determine whether follow-up testing is necessary for a particular individual.)

Furthermore, in accordance with a 2003 Canadian Human Rights Tribunal decision¹⁰, commercial bus operators can subject their drivers to pre-employment and random alcohol and drug testing as long as they accommodate employees who are found to be drug or alcohol dependent. The Commission has extended the Tribunal’s decision to trucking operations.

If an employer, other than those in commercial bus and trucking operations, believes that it may be able to justify random and pre-employment testing of its employees in safety-sensitive positions, these are the some of the factors that may be considered by the Commission in determining whether testing is a bona fide occupational requirement:

• whether employees are under direct supervision; 
• whether there are less invasive alternatives to drug and alcohol testing that may help employers determine whether employees in safety-sensitive positions are impaired on the job;
• whether there is evidence of a high incidence of drug use in the workplace or industry;
• whether the employer offers a comprehensive employer-supported rehabilitation program; and
• whether the employer is required to comply with legislation or regulations, such as occupational health and safety legislation, or U.S. Department of Transportation regulations.

6. Specific Drug and Alcohol Testing Practices  

6.1 Pre-Employment Drug and Alcohol Testing

Testing for alcohol or drugs is a form of medical examination. Any employment-related medical examination or inquiry must be limited to determining an individual’s ability to perform the essential requirements of the job. An employer must therefore demonstrate that pre-employment drug or alcohol testing effectively assesses an applicant’s ability to discharge their employment responsibilities. Since a positive pre-employment drug or alcohol test cannot predict whether the individual will be impaired at any time while on the job, pre-employment testing may not be shown to be reasonably necessary to accomplish the legitimate goal of hiring workers who will not be impaired at work¹¹.

Pre-employment drug or alcohol testing is permitted only in limited circumstances, such as when the individual has disclosed an existing or recent history of drug or alcohol abuse, or where a pre-employment medical exam provides the physician with reasonable cause to believe that an individual may be abusing drugs or alcohol and therefore may become impaired on the job. In addition, commercial bus and truck operations can subject their drivers to pre-employment testing¹².

However, an employer cannot automatically withdraw offers of employment from prospective employees who fail their drug or alcohol test, without first addressing the issue of accommodation¹³.

Applicants for employment who have signed a waiver or release agreeing to undergo a pre-employment drug test may still be able to file a human rights complaint if they have been treated unfavourably or are denied employment as a result of testing positively.

6.2 Random Testing for Drugs and Alcohol

Since a positive drug test cannot measure present impairment and can only confirm that a person has been exposed to drugs at some point in the past (sometimes as much as several weeks in the past), a positive test cannot determine whether a person was impaired on the job. Therefore, random drug tests cannot be shown to be reasonably necessary to accomplish the goal of ensuring that workers are not impaired by drugs while on the job¹⁴. Note the exception in the case of bus and truck operators.

As long as employees are notified that alcohol testing is a condition of employment, random alcohol testing of employees in safety-sensitive positions may be permissible, but only if the employer accommodates the needs of those who test positive and are determined to be dependent on alcohol¹⁵.

Random alcohol testing of an employee in a non-safety-sensitive position is not appropriate.

6.3 Reasonable Cause and Post-Incident Drug and Alcohol Testing
 
Reasonable cause or post-incident/accident testing for alcohol or drugs may be acceptable in specific circumstances in a safety-sensitive work environment. For example, following a significant accident, near miss or report of dangerous behaviour, an employer will have a legitimate interest in assessing whether an employee has used substances that may have contributed to the accident or incident.

Post-accident testing, if justified, should be conducted as soon as is reasonably practical. It should not be conducted when there is evidence that the act or omission of the employee could not have contributed to the accident—for example, when the accident is due to structural or mechanical failure.

Testing may also be acceptable when an employee reports to work in an unfit condition and there are reasonable grounds to suspect substance abuse. An employer can generally establish that reasonable cause and post-incident testing are necessary to meet the heightened safety standards required in risk-sensitive environments, as long as testing is part of a broader program of medical assessment, monitoring and support.

Although there has been no clear guidance from the Courts, an employer may be able to justify reasonable cause and post-incident/accident drug and alcohol testing of employees in non-safety-sensitive positions as a BFOR. Testing should be considered only where an employee’s on-the-job behaviour provides reasonable grounds to believe the employee is impaired by drugs or alcohol.

It is not necessary for an employer to resort to drug or alcohol testing where an employee reports to work in an unfit condition and is suspected of abusing drugs and/or alcohol. Appropriate action can be taken, where there is reasonable cause, such as medical assessment, referral to counselling or employee assistance programs, monitoring and appropriate disciplinary measures.

6.4 Disclosure of Drug or Alcohol Use

As part of screening for fitness to perform work of a safety sensitive nature, an employer may ask employees to provide personal medical information through a pre-employment questionnaire or application form, or as part of a medical examination. Questions concerning use of alcohol or drugs may also be included.

Employers can require employees who work in safety-sensitive positions to disclose current use of alcohol and drugs, as well as a history of alcohol or drug abuse within the last five or six years for alcohol dependency, and six years for drug dependency, the point where the risk of relapse is “no greater than the risk a member of the general population will suffer a substance abuse problem.”¹⁶

Generally, employees in non-safety-sensitive positions need not disclose past dependency on alcohol or drugs, unless an employer can establish that such a disclosure is a BFOR.

Automatic dismissal or refusal to employ someone based on a disclosure of past or present dependency on drugs or alcohol is contrary to the Canadian Human Rights Act. In most cases, failure to disclose alcohol or drug use or dependency is not grounds for dismissal, since denial can be a symptom of addiction.

An employee who requests assistance because of alcohol or drug use should not be disciplined for seeking help.

Footnotes

4. Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City); Québec (Commission des droits de la personne) v Boisbriand (2000) 1 S.C.R. 665

5. Canadian Human Rights Act. s 25

6. Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v Boisbriand  (2000) 1 S.C.R. 665

7. Milazzo v Autocar Connaisseur (2003) 47 C.H.R.R. D/468. More recently, the Tribunal followed this finding in Dennis v Eskasoni Band Council (September 2008).

8. Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (2007)  ABCA 426. Leave to appeal denied by SCC May 29, 2008.

9. Entrop v. Imperial Oil, supra note 2.

10. Milazzo v. Autocar Connaisseur, [2003] 47 C.H.R.R. D/468.

11. Entrop v. Imperial Oil, supra note 2.

12. Milazzo v. Autocar Connaisseur, supra note 7.

13. Ibid

14. Entrop v. Imperial Oil, supra note 2.

15. Ibid.

16. Entrop v. Imperial Oil, supra note 2.