When Can an Employer Request Drug Testing in Ontario?
In Ontario, drug testing in the workplace is a complex issue, one that balances the employer’s need for a safe work environment with the employee’s right to privacy and protection from discrimination under the Ontario Human Rights Code. Under the Code, addiction is defined as a disability, meaning that employers must accommodate the employee up to the point of undue hardship, even if substance use has been proven.
While drug testing isn’t common practice in most Canadian workplaces, there are certain situations where it may be justified. So, when can an employer request drug testing in Ontario?
- Safety-Sensitive Roles
If an employee works in a safety-sensitive position — such as operating heavy machinery, driving, or handling hazardous materials — employers have a heightened responsibility to ensure the safety of both the employee and others. In these cases, drug testing may be seen as reasonable, particularly if there are signs of impairment.
- Post-Accident or Incident
After a workplace accident or near miss, employers may seek to determine if drugs or alcohol were a contributing factor, but only if they can first establish reasonable suspicion that this was the case. If reasonable suspicion has been established, and the individual involved is in a safety sensitive role, a drug test may be requested to understand the circumstances that led to the incident. Drug testing should always be relevant to the situation.
- Reasonable Suspicion
If an employer has reason to believe that an employee is under the influence of drugs or alcohol while on the job, they may have grounds for testing – but again, the individual in question must be in a safety sensitive role. “Reasonable suspicion” must be based on observable behaviors, such as slurred speech, impaired motor skills, or smelling of alcohol. Employers need to document these observations carefully to support the decision to request a test.
- Pre-Employment Testing
Pre-employment drug testing is only allowed in Ontario under very narrow circumstances (for example, in the aviation industry). If employers do put in place pre-employment drug and alcohol testing for safety-sensitive positions, the Ontario Human Rights Commission states they should make sure that a positive test result does not lead to automatically revoking the offer of employment or other negative consequences. The testing should be one part of a larger qualifying process, which could include examining the required licensing or other legitimate qualifications.
Key Considerations: Privacy and Human Rights
While employers may have legitimate reasons to request drug testing, they must balance this against employees’ privacy and rights under the Ontario Human Rights Code. Testing cannot be done arbitrarily, and an employer must prove that it’s necessary and reasonable in the context of the job. Furthermore, drug addiction is considered a disability under the Code, meaning employees must be treated fairly and provided with accommodations when needed.
Employers should also have clear, written policies in place regarding drug and alcohol testing to ensure that all employees are aware of the expectations and conditions under which testing may be requested.
Final Thoughts
Drug testing in the workplace should never be implemented lightly. Employers need to carefully assess the nature of the job, the circumstances around the need for testing, and their legal obligations under Ontario law. Seeking legal advice or consulting with an HR professional is always recommended to navigate this sensitive area appropriately. Contact us today at SHRP if you need to update or implement substance use policies in your workplace.
