Drug Testing

The Canadian Human Rights Commission has ruled that prior or existing drug dependence is a disability under the Canadian Human Rights Act. Therefore, if you dismiss or deny employment to someone because of a positive test, you run the risk of being called before the commission to fight allegations that you committed an act of discrimination.

There is an exception, and it’s pertinent to trucking operations. The commission says testing for drugs may be justified when safety is “of fundamental importance” to the employee’s job: that is, his impairment due to drug use could result in “direct and significant risk of injury” to himself or others. The onus is on you as the employer to show that the employee does in fact hold a safety-sensitive job, and that there is no feasible way other than drug testing to make sure he is not incapacitated while working. As such, testing may be justified when the employee’s work is largely unsupervised.

If the employee tests positive, the commission says he must be accommodated-referred to a substance abuse professional to determine whether he is indeed drug-dependent. If not, he should be returned to his job; if so, he should be referred to a rehab program. If the employee is repeatedly unsuccessful in rehabilitation, the commission may recognize that you’ve fulfilled your duty to accommodate and you may be justified in letting the worker go. The same could hold true if, after rehabilitation, follow-up testing reveals continued drug use.

Remember, this is Canadian Human Rights Commission policy-each case is reviewed on its own merits. In addition, individual courts may interpret things differently. If you still want to broaden your drug testing program, get specific legal advice first.