Employee rights concerning drug testing and accommodations for substance
It’s estimated that approximately 21% of Canadians (roughly 6 million people), will struggle with substance addiction in their lifetime. As per the Ontario Human Rights Code (the Code), severe substance dependence and addiction are classified as a disability. The Code protects employees with substance addictions from facing discrimination and discipline in the workplace. The Code protects anyone with a perceived or past addiction or dependency on drugs and alcohol but it does not protect individuals who consume substances recreationally. Understanding the laws surrounding drug testing, accommodations, and accessibilities is necessary to protect the employee rights of those with substance addictions.
Employee rights – drug and alcohol testing in the workplace
In order to protect the privacy, human rights, and employee rights of Canadians, there are general guidelines and criteria in place for drug testing. While drug and alcohol testing is legal in Canada, they’re only justified in safety-sensitive positions and under specific circumstances.
Circumstances where drug and alcohol testing are justifiable:
- When an employer has reasonable cause to suspect that an employee is under the influence (erratic behaviour, accidents, smelling of drugs or alcohol, evidence that alcohol was consumed on the job)
- If an employee is involved in an accident where other causes (i.e., environmental, mechanical) are ruled out
- There is a mutual agreement between the employee and employer that outlines drug and alcohol testing as a requirement to return to work
- In workplaces where substance addiction is a proven, clearly demonstrated, and widespread issue.
- In safety-sensitive positions where there is little to no staff supervision
- Where it is necessary to maintain workplace safety
- There are no automatic consequences or repercussions (i.e., dismissal) following a positive test result
Any drug and alcohol testing policies should only be enforced in good faith. Employers cannot infringe upon the employee’s rights by requesting random testing without adequate justification. Imposing negative consequences or disciplining employees who may have an addiction is discriminatory. In order to protect employee rights, employers should always consult a lawyer before implementing testing policies. Employers should also consider less intrusive alternatives to drug and alcohol testing such as face-to-face interactions and supervision.
Accommodations and accessibility
If an employee tests positive on a drug or alcohol test, it is the employer’s duty to provide accommodation to the point of undue hardship. Each circumstance should be evaluated by a professional with expertise in the area of substance addiction on a case-by-case basis. The necessary accommodations will depend on the individual and personal needs of each person.
Accommodations that protect employee rights include:
- modified duties
- support that enables the employee to participate in a rehabilitation program
- short or long-term changes and adjustments to the employee’s schedule
- reducing performance requirements
- re-assigning an employee to a position that is not safety-sensitive
Once an employer develops an accommodation plan, it must be put in writing and signed by all parties, and only shared with necessary parties. Employers can only claim undue hardship and refuse accommodation if it will cost too much or pose a risk to health and safety in the workplace.