Because testing is so privacy-invasive, it’s justified only for workers who have safety-sensitive jobs. Random testing, or testing without cause, is allowed only for safety-sensitive workers in dangerous workplaces where there’s documented evidence of worker drugs/alcohol problems at the particular site.
The legality of a particular testing policy depends on who’s being tested, what’s being tested for and the basis for testing. While each case is different, based on decades of litigation, we know that:
- Testing is generally justifiable only for safety-sensitive workers;
- Testing is easier to justify when it’s for cause, for example, right after a workplace incident or in response to other reasonable suspicions of immediate impairment;
- Random alcohol testing is easier to justify than random drug testing because testing positive proves impairment at the time of testing; and
- Random drug testing is the hardest to justify and requires proving a history of safety problems at the site and evidence linking those problems to workers’ drugs or use.
The Canadian Human Rights Commission (CHRC) recommends that employers, wherever possible, rely on observation, supervision and frequent face-to-face conversations as a way to recognize when an employee is impaired. However, the CHRC states that for safety-sensitive jobs, employers must always use a safety-first approach.
In order to justify any form of testing policy, drug/alcohol impairment must be related to the essential duties of job performance.
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