With the upcoming legalization of marijuana in Canada, the increasing use of opioids, and the pervasive use of alcohol in our society, Canadian employers are intent on doing their due diligence to ensure workers are not impaired at work.
HR practitioners must keep abreast of changes happening in the Canadian employment-law arena. This is easier said than done—nothing is more confusing, or changing more rapidly, than rulings around the employer’s right to test employees for drugs and alcohol. Drug testing, workplace safety, and employee rights have been in at the centre of a number of legal battles for many years.
There are two competing principles in play in an ongoing legal battle between Suncor Energy and Unifor, the union that represents many of Suncor’s employees. Suncor believes it has a legal safety obligation to test employees for drugs and alcohol, saying that they have had 2200 safety incidents involving drugs and alcohol.
Suncor certainly does have a legal and moral duty to ensure the workplace is safe and free of hazards, including impaired employees. However, the union’s position, which is also valid, is that employees have the right to privacy, and that random drug testing violates that right.
Suncor won a September 2017 ruling that allows them to test employees for drugs and alcohol randomly.
However, in December 2017, just over two months after the ruling in Suncor’s favour, an Alberta Judge placed a temporary injunction preventing Suncor from carrying out random drug testingz
So, where do we stand on random drug testing in Canada now? It is very unclear. Currently, in Alberta, employers don’t seem to have the right to use random drug testing, even for safety-sensitive jobs. The story is different in Ontario, however, with the Ontario Superior Court ruling that random drug testing is legal.
Ontario Associate Chief Justice Frank Marrocco declared, in his decision concerning the Toronto Transit Commission, that, “public safety outweighs privacy concerns.”
So, there you have it, HR Professionals — there is no clear answer to the question concerning the conflict between rights of the employer against the rights of the employee. What is the HR Professional to do, you ask? Stay aware, stay concerned, and keep up to date on employment court rulings. These ruling can change rapidly.
Research policies in Canadian workplace and analyze them with respect to drug and alcohol testing. Is it a workplace requirement? When can the employer ask for drug/alcohol testing? Do any policies have a requirement for random drug and alcohol testing?