In the aftermath of wheels-up Lance Armstrong’s not-so-surprising confessions to Mme. O last week, now’s as good a time as any to put together a snapshot of the Canadian employment landscape insofar as drug-and-alcohol testing practices go here. Here’s a half-dozen data points thereon:
- Wildly inconsistent rulings by various courts, labour boards and human rights tribunals across the country have created a climate of confusion on the subject of random workplace tests for drugs for workers engaged in jobs that are not considered “safety sensitive.” The uncertainty stems from efforts to strike a balance between ensuring a safe working environment and protecting individuals’ basic human rights.
- As of April 2012, only eight jurisdictions in this country had a policy on drug and alcohol testing: Saskatchewan, PEI, Northwest Territories, Alberta, Manitoba, Ontario, New Brunswick, and Newfoundland and Labrador.
- The Canadian Human Rights Commission Policy on Alcohol and Drug Testing prohibits discrimination on the basis of disability and perceived disability. Disability includes individuals with a previous or existing dependence on alcohol or a drug, and perceived disability refers to an employer’s perception that someone’s use of alcohol or drugs makes him “unfit to work.”
- Because they can’t be characterized as “bona-fide occupational requirements,” says the Canadian Human Rights Commission, the following tests are not acceptable: pre-employment drug or alcohol testing, random drug testing and random alcohol testing of employees in non-safety-sensitive positions.
- In Canada, the (massive) onus is on the employer to establish that drug and alcohol tests are necessary for ensuring the safe and comprehensive fulfillment of a professional position.
- There are currently two prominent cases before the courts —Suncor and Irving (see: http://www.cbc.ca/news/canada/story/2012/12/07/f-random-drug-testing.html) — that challenge the muddiness of the “safety-sensitive work” exception and which observers hope might shed clarity on the scene.
Given the swirling uncertainty that characterizes this subject, it’s no surprise that taking a boozy workplace abuser to task in this country is a tall order.