Pre-Employment Drug & Alcohol Testing

In your hiring practices are you relying on a lab or doctor’s recommendations in determining the fitness or abilities of prospective employees? 

Then beware, and be aware! There are legal considerations that need to be taken into account.

Drug and alcohol testing in Canada has typically been restricted to reasonable cause, post-incident or return to work from rehabilitation scenarios.  Pre-employment and random testing have all but been prohibited.

The Supreme Court of Canada has determined that in most cases mandatory testing for drug and alcohol use of any kind, constitutes discrimination as it involves a preconceived perception that a disability exists.  With the exception of cases where safety or risk is a serious issue, then testing may be permissible.  All other testing must be tied to an impairment that can be observed while at work. In addition, the Supreme Court of Canada found that random drug testing, where the employer failed to show a problem in the workplace, was seen to be a breach of the Charter right to privacy.

While it is common knowledge that the use of alcohol and certain drugs can impair an individual’s ability to work safely and, depending on the workplace, lead to serious injury, property damage and associated liabilities. Which leads one to think that testing for drug and alcohol use in the workplace seems reasonable to reduce risks and create a safe work environment.  However, testing often raises concerns around invasion of privacy without reasonable grounds, and can lead to discrimination on the basis of an actual or perceived disability (an addiction is a disability under Canadian Human Rights law).

The key takeaway is this- pre employment testing remains controversial and should only be administered in a non-discriminatory manner (i.e., those who “fail” a test should not face automatic disqualification).  Simply put, the withdrawal of an offer of employment based on information supported by a pre-employment drug and alcohol test can lead to a complaint of discrimination in your hiring practices.

So, be aware.