The Ontario Human Rights Commission (OHRC) has released an updated policy on drug and alcohol testing, including a list of 11 key policy features. The policy aims to safeguard equal rights and opportunities for every person without discrimination and respect employers’ goal of having a safe work place. In light of the predicted move to legalize the recreational personal use of marijuana by the Canadian federal government next year, the subject of worker impairment and workplace safety is timely. Organizations may find these 11 features helpful when developing their own drug and alcohol testing policy.
In its updated policy on drug and alcohol testing, the OHRC states that it is a legitimate goal for employers to have a safe workplace. They acknowledge that safety at work can be negatively affected by many factors, including fatigue, stress, distractions and hazards in the workplace and that drug and alcohol testing is one method employers sometimes use to address safety concerns arising from drug and alcohol use.
The policy also expresses that drug and alcohol testing has particular human rights implications for people with addictions. Under the Ontario Human Rights Code (Code), addictions to drugs or alcohol are considered “disabilities” and the Code prohibits discrimination against people with disabilities and perceived disabilities in employment, services, housing and other social areas.
For this reason, drug and alcohol testing policies may be discriminatory based on addictions or perceived addictions. They raise human rights concerns where a positive test leads to negative consequences for a person based on an addiction or perceived addiction, such as automatic discipline or inflexible terms and conditions on a person’s job.
Impairment over use
According to the updated policy, the primary reason for conducting drug and alcohol testing should be to measure impairment, as opposed to deterring drug or alcohol use. Drug and alcohol testing may be justifiable if an employer can show that testing provisions are legitimate requirements of the job. One example situation could be if an employee is in a safety-sensitive position and after a significant accident or “near-miss”, and only then as part of a larger assessment of drug and alcohol addiction. By testing to measure impairment, especially in jobs that are safety-sensitive, an appropriate balance can be struck between human rights and safety requirements, for both employees and the public.
The policy goes on to propose that following a positive test, employers should offer a process of individualized assessment of drug or alcohol addiction and must accommodate employees with addictions to the point of undue hardship. If employers or drug and alcohol testing policies treat recreational (or casual) users as if they are people with addictions and impose consequences on this basis, they may be regarded as discriminatory based on “perceived disability.”
The OHRC lists the following as key policy features of a drug and alcohol testing policy that is respectful of human rights and may be justifiable under the Ontario Human Rights Code:
- Is based on a rational connection between the purpose of testing (minimizing the risk of impairment to ensure safety) and job performance
- Shows that testing is necessary to achieve workplace safety
- Is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored
- Is used only in limited circumstances, such as forcause, postincident or postreinstatement situations
- Does not apply automatic consequences following positive tests
- Does not conflate substance use with substance addiction
- Is used as part of a larger assessment of drug or alcohol addiction (for example, employee assistance programs, drug education and awareness programs and a broader medical assessment by a professional with expertise in substance use disorders or physician that provides a process for inquiring into possible disability)
- Provides individualized accommodation for people with addictions who test positive, to the point of undue hardship
- Uses testing methods that are highly accurate, able to measure current impairment, are minimally intrusive and provide rapid results
- Uses reputable procedures for analysis, and
- Ensures confidentiality of medical information and the dignity of the person throughout the process.
The updated Policy on Drug and Alcohol Testing is available as an accessible PDF from the Ontario Human Rights Commission website.
Originally posted by CCOHS November 2016; resources Levitt-Safety's own.