Drug-testing rules for domestic truckers relaxed

TORONTO — Reefer screening (and no, we don’t mean refrigerated trailers) for domestic truck drivers may be acceptable in some circumstances under human rights rules.

The Canadian Human Rights Commission released a revised policy in September on the subject of drug and alcohol testing in the workplace, which apparently makes it easier for Canadian companies to test truck drivers for drugs an alcohol for Canadian operations.

For years, random drug testing violated Canadian human rights legislation.

More recently, though, human rights rulings appeared to sympathize with Canadian employers who, under DOT rules, had to test for U.S. operations. However, random testing for work in Canada is routinely disciplined by human rights bodies across the country.

Perhaps until now.

According to the Private Motor Truck Council of Canada, the CHRC agreed to revise aspects of its policy thanks, in-part, to lobbying by the private trucking group.

PMTC long-supported the view that drug testing by urinalysis should be an acceptable means of determining impairment for safety sensitive positions.

Although the Commission maintained its position that, unlike screening for alcohol, random tests for drugs like marijuana only indicate prior use and does not confirm impairment (and are thereby illegal), the revised policy indicated that "reasonable cause" testing is acceptable for safety-senstive employees who reports to work "in an unfit state and there is evidence of substance abuse," reports PMTC, or post-incident if there is evidence that the employee’s act or omission may have contributed to the incident; or following treatment for drug abuse.

As mentioned above, while a 2003 Canadian Human Rights Tribunal decision (Milanno v Autocar Connaisseur) confirmed the right of employers to test cross-border drivers to pre-employment and random alcohol and drug testing — subject to providing accommodation to those found to be dependent — the commission seems to have extended the decision for carriers that only operate domestically in Canada.

"This is a significant change in the Commission’s policy," states PMTC.

However, as PMTC notes, what remains undefined is the employer’s requirement to accommodate an applicant who fails a test.

Previous cases had established that recreational drug users were not entitled to protection and accommodation under the human rights legislation; however PMTC states that the the Commission will continue to consider cases, based on the facts of each, regardless of whether they involve recreational or dependent users of drugs.

PMTC advises members who have implemented a drug and alcohol testing regime, or are now considering doing so, to review the revised policy carefully with legal experts.