Human Rights Tribunal reinforces drug testing for cross-border drivers

TORONTO, (Jan. 26, 2004) — The Canadian Human Rights Tribunal has upheld a previous policy that states random, and pre-employment drug testing for cross-border drivers is acceptable in order to comply with U.S. drug-testing rules.

Perhaps even more importantly, the Tribunal also opened the door to allow random drug testing for Canadian operations as well. The Tribunal, went above and beyond the Human Rights Commission’s previous policies, noting that drug testing is not just a regulatory requirement for U.S. operations, but a national safety issue as well — one that may discourage drug use among workers in safety sensitive positions, a consultant close to the issue told Today’s Trucking.

The decision, which was published last November, is the result of a challenge brought forward by a motor coach driver who failed a pre-employment drug test required to transfer him to the U.S. DOT regulated pool, and was subsequently dismissed. The driver complained that he had been discriminated against because the company perceived he was dependent (and thereby disabled in the eyes of the law) when they terminated his employment. The Canadian Human Rights Act prohibits employers from discriminating on the basis of a disability, or even if it can be shown the employer “perceived” the employee to be dependant.

The ruling is consistent with a two-year-old provision made by Canadian Human Rights Commission — the investigative body of the Tribunal — which found that random testing for drugs is acceptable in safety-sensitive, cross-border applications. Randomly testing for drugs is off the books in other occupational circumstances because — unlike alcohol testing — it does not indicate impairment, according to the Commission.

However, the Commission also ruled at the time that an individual deemed to be dependant could not be terminated and the employer has an obligation to accommodate the individual through rehabilitation and counseling, while finding alternative work with similar hours and salary — provided such a position exists at the workplace or can be created without “undo hardship.”

This recent Tribunal decision does not change that rule, however, except to add the possibility of extending the policy throughout Canada. The Tribunal’s November decision simply found that the driver in this case failed to show that he was dependant, or that his employer “perceived” him to be dependant, as the employee claimed. The driver was simply dismissed as part of the company’s “zero tolerance” policy, and therefore there was no case for discrimination.

Also significant in the decision was the fact that the Commission’s policy on drug and alcohol testing is not binding, according to the Tribunal. It noted the Commission’s policy “is nothing more than a statement of the Commission’s opinion on the issue of drug and alcohol testing, an opinion that the Tribunal may agree with or not as it sees fit.”

According to Brampton, Ont.-based labour attorney Christopher Andree, the threshold for deciding future cases rests with the courts’ ability to determine if a employee is indeed dependant/disabled or if an employer perceived the worker to be dependant on drugs. “The question remains if the person is dependant or perceived to be. If they’re ruled not to be, then they’re not entitled to protection,” he told Today’s Trucking.

Although in this specific case the Tribunal ruled the company was not obliged to offer an alternate position such as driving in Canada, the employer has a duty in dependency/disability cases to refer the employee for assessment and accommodate their problem up to undue hardship — if the employee voluntarily discloses drug or alcohol use.

For a copy of the decision go to http://www.chrt-tcdp.gc.ca/search/files/t713_1802de.pdf