7. The Duty to Accommodate and Undue Hardship

In the limited circumstances where testing is justified, employees who test positive and are determined to be dependent on drugs or alcohol, must be accommodated to the point of undue hardship. The Act requires individualized or personalized accommodation measures. Policies that result in automatic loss of employment or reassignment, or that impose inflexible reinstatement conditions without regard for personal circumstances, are unlikely to meet this requirement.

The extent to which the employer is required to accommodate an employee who is dependent on drugs or alcohol depends on a variety of factors, including the following:

• health and safety concerns;
• past efforts to accommodate;
• the response to prior treatment or corrective programs and prognosis;
• the nature and seriousness of the violation;
• the costs of the required accommodation;
• the size of the operation;
• the economic conditions facing the employer; and
• the availability of other, non-safety sensitive, positions.

In most cases, employees or applicants should be referred to a substance abuse professional to determine whether, in fact, they are drug or alcohol dependent. If  they are dependent on alcohol or drugs, the employer should accommodate them by providing the necessary support to permit them to undergo treatment or a rehabilitation program. An employer may be justified in temporarily removing an employee who is an active user or has a recent history of substance abuse from a safety-sensitive position.

Once the employee has successfully completed a rehabilitation program, the employee should be returned to his or her position. Follow-up testing, conducted at reasonable intervals, may be a condition of continued employment where safety is of fundamental importance. If follow-up testing reveals continuing drug or alcohol use, further employer action, up to dismissal, may be justified. However, given the nature of alcohol and drug dependence, there is a significant risk of relapse. In some circumstances, an employer may be expected to accommodate, to the point of undue hardship, those employees who continue to inappropriately use drugs or alcohol.

An employer can best prove undue hardship by demonstrating that the employee continues to repeatedly lapse despite participating in comprehensive employer-supported rehabilitation programs.

If a substance abuse professional determines that the employee is not dependent on alcohol or drugs, the employee should be returned to his or her position and appropriate  action may be taken. Appropriate consequences for a breach of an employer’s drug or alcohol use policy depend on the facts of the case, including the nature and seriousness of the violation, the existence of prior infractions and the response to prior corrective programs.

"Last chance agreements", which employees are asked to sign after a positive test or upon their return to work following treatment, will not be enforced by the Canadian Human Rights Commission. The fact that an employee has agreed that his or her employment may be terminated if there is any repetition of problematic behaviour, and has waived any right to complain under human rights legislation, “does not, of itself, confirm whether there has been sufficient compliance with the duty of accommodation established under human rights legislation, legislation which the parties cannot contract out.”¹⁷ An analysis must be done by the Commission in each case to determine whether the employer has accommodated, to the point of undue hardship, the needs of the employee.¹⁸ The existence of a ‘last chance agreement’, is a factor to be considered by the Commission in this analysis.

There are limits on the duty to accommodate, especially where an employee deliberately misleads an employer. Denial of the extent of drug or alcohol use is often a symptom of addiction. However, accommodation is contingent on an employee’s responsibility to take matters into their own hands and ask for help.¹⁹ As pointed out by the Supreme Court,²⁰ the search for accommodation is a multi-party inquiry²¹ that requires the employee’s active participation. An employee’s failure to disclose a disability may negate the duty to accommodate, particularly where the employee repeatedly denies using drugs or alcohol.

An employer has a duty to accommodate. However, if the employee is not prepared to participate in a meaningful way in any of the accommodation process or the measures the employer offers, then the employer may have established undue hardship. At some point, the employee must take responsibility for their own behaviour, especially if it is related to drugs or alcohol.²²
 
If an employer has reasonable cause to believe an employee is abusing drugs or alcohol, or an employee tests positive, and the employee refuses to acknowledge their use of drugs or alcohol or seek treatment, this fact does not in and of itself constitute undue hardship and does not justify immediate dismissal. Before terminating an employee, an employer has to demonstrate that it has warned the employee through progressive discipline, and that the employee is unable to perform the essential requirements of the position.

8. Factors in Ensuring Compliance

In addition to the many factors discussed in this policy, the Commission may also consider some of the following elements when reviewing a drug or alcohol testing policy:

• Does the employer notify applicants and employees that they will be subjected to drug or alcohol testing? The circumstances under which testing may be required should be made clear to employees and applicants.
• Are drug or alcohol testing samples collected by qualified professionals, and are the results analyzed by a competent laboratory?
• Are procedures in place to ensure that a health care professional or medical review officer reviews the test results with the employee or applicant concerned? All non-negative test results should be evaluated to determine whether there is an explanation for the result other than drug or alcohol use. An accredited laboratory should conduct a second confirmation test to ensure fairness and accuracy of the test results.
• Are procedures in place to ensure confidentiality of test results? Any records concerning drug and alcohol tests should be kept in a separate, confidential file away from other employee records.

9. Conclusion

In addition to alcohol and drug use, there are many other factors—such as fatigue, stress, anxiety and personal problems—that lead to employee impairment and jeopardize workplace safety. The Commission encourages employers to adopt programs and policies that focus on identifying impairment and safety risks, and that are remedial, not punitive. An employer should consider adopting comprehensive workplace health policies that may include employee assistance programs, drug education and health promotion programs, off-site counselling and referral services, and peer or supervisor monitoring.

This policy has been approved by the Commission and came into effect on September 29, 2009.
 

References

Applicable Sections of the Canadian Human Rights Act

Section 2
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
        
Section 25
Disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

Section 7
It is a discriminatory practice, directly or indirectly,

1. to refuse to employ or continue to employ any individual, or
2. in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.

Section 10
It is a discriminatory practice for an employer . . . or organization of employers

1. to establish or pursue a policy or practice, or
2. to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

Section 15
15(1) It is not a discriminatory practice if 

1. any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement . . . 

15(2) For any practice mentioned in paragraph 1(a) to be considered a bona fide occupational requirement . . . it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

Applicable Legal Decisions

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (Meiorin)

In the Meiorin²³ case, the Supreme Court of Canada set out the test for determining whether an employer has established a BFOR and satisfied the duty to accommodate short of undue hardship. Under the test, the following questions must be asked:

• Did the employer adopt the policy or standard for a purpose rationally connected to the performance of the job?
• Did the employer adopt the particular policy or standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate, work-related purpose?
• Is the policy or standard reasonably necessary to the accomplishment of that legitimate, work-related purpose?

This last element requires the employer to show that the policy or standard adopted is the least discriminatory way to achieve the purpose or goal in relation to the particular jobs to which the policy or standard applies. The employer must also show that it is impossible to accommodate individual employees without imposing undue hardship on the employer.

As a result of the Meiorin decision, all allegedly discriminatory standards and policies have to be justified as rationally connected to the work or service, made in good faith, and reasonably necessary. The investigation of a human rights complaint will also consider whether the standard or policy has the effect of excluding members of a particular group on impressionistic assumptions, or treating one or more groups more harshly than others without apparent justification. The onus is on the employer to provide evidence that it has met each of the elements of the test set out by the Court.

Entrop v.  Imperial Oil 

In Entrop v. Imperial Oil,²⁴ 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 whether they are likely to be impaired while on the job.

With this distinction established, the Court concluded that random alcohol testing of employees was permissible for employees in safety-sensitive positions. In the opinion of the Court, employers can legitimately take steps to detect alcohol impairment among its employees in safety-sensitive positions where supervision is limited or non-existent.

However, because drug testing cannot measure present impairment, future impairment or likely impairment on the job, Imperial Oil could not justify pre-employment testing or random drug testing for employees in safety-sensitive (or other) positions as reasonably necessary to accomplish Imperial Oil's legitimate goal of ensuring a safe workplace, free from impairment (the third branch of the Supreme Court test). Further, the Ontario Court of Appeal found that drug testing programs had not been shown to be effective in reducing drug use, work accidents or work performance problems.

The Court held that drug testing for cause—or drug testing done post-accident, pre-certification or post-reinstatement—may be acceptable if "necessary as one facet of a larger process of assessment of drug abuse."

Milazzo v. Autocar Connaisseur

In 2003, the Canadian Human Rights Tribunal ruled that allowing charter bus operators to subject their drivers to pre-employment and random alcohol and drug testing was permissible, as long as they accommodated employees who were found to be drug or alcohol dependent. The Tribunal held in Milazzo v. Autocar Connaisseur²⁵ that, while pre-employment and random drug testing is prima  facie discriminatory, it can be justified as a BFOR when employees occupy safety-sensitive positions with little or no supervision. The Tribunal acknowledged that, while a positive drug test does not indicate that a bus driver is impaired on the job, it is a “red flag”. Based on the evidence before it, the Tribunal said that testing for drugs “is a legitimate way to promote road safety,” as it helps employers identify drivers at a higher risk of accident. The Tribunal also found that the existence of a drug testing policy would deter at least some employees from using drugs and alcohol in the workplace, and that the company had an obligation to comply with U.S. Department of Transportation legislation.

As a consequence of this ruling, 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.

Footnotes

17. Milazzo v. Autocar Connaisseur (No. 3) [2005] 51 C.H.R.R.

18. Ibid.

19. Benoit v. Bell Canada, [2004] 51 C.H.R.R.

20. Central Okanagan School District No. 23 v. Renaud, [1992] S.C.J. 75.

21. Unions can have a role to play in the accommodation process. This might include counselling, assisting in the determination of appropriate accommodation measures,  representation during the negotiation continuing employment contracts and other disciplinary measures.

22. Benoit v. Bell Canada, supra note 19.

23. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3.

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

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