Drug and alcohol testing: What employees should know

You can feel a great sense of accomplishment when you get a new job or promotion. Unfortunately, this could all be in jeopardy if your employer requires a drug or alcohol test and you do not successfully pass such tests.

Drug and alcohol testing is controversial for a few reasons and require a careful balancing of employees’ human rights and privacy rights with the employer’s legal obligation to maintain a safe workplace.

Why do employers require tests?

Employers who require drug and alcohol tests typically do so for safety purposes. There are various types of circumstances when testing may arise, including but not limited to:

1. a “near miss” meaning a narrowly avoided workplace accident;
2. reasonable cause; or
3. random testing.

An employee impaired by drugs or alcohol can experience delayed decision-making and make serious mistakes as a result. Impaired workers can put themselves and others in danger, leading to life-threatening situations, especially if they are operating heavy machinery as part of performing job-related tasks. In addition, employee impairment could cost employers a considerable amount of money if negligent actions occur and damages ensue. As such, employers may require drug and alcohol tests to satisfy itself that its employees are fit to work.

But isn’t this a violation of my privacy?

Undergoing a drug or alcohol test can be a violation of employees’ privacy, particularly if it is testing at a non-safety-sensitive workplace or irrelevant to your job requirement. This violation is exacerbated if the method of collecting such information reveals other medical history or conditions of the employee to the employer that are not related to their job requirements, or if the drug and alcohol testing are mandatory across the entire workforce. In these circumstances, employers can have incredible difficulty justifying the basis for such tests. Even in safety-sensitive workplaces, certain policies regarding drug or alcohol testing can be unlawful. For instance, employers generally cannot require pre-employment tests or random tests in non-safety-sensitive workplaces.

As previously mentioned, employers may conduct tests if there is reasonable cause to suspect that an employee was impaired on the job or if they were in a workplace accident. In very limited cases, employers can also be within their rights to require pre-employment testing, but failure of that testing cannot automatically disqualify an employee from the job.

While there is no one clear law on drug and alcohol testing in the workplace, the general consensus has been that it can be justifiable in certain circumstances. More specifically, the benefits of testing to ensure safety must outweigh the violation of privacy.

What if my employer violates my rights?

Drug and alcohol testing are only permitted in limited circumstances. Terminating an employee’s employment or refusing to hire them after a failed test may give rise to a wrongful dismissal and/or human rights claim, for example, but such circumstances are highly fact-dependent.

For employers who are considering implementing drug and alcohol testing for safety reasons, or for employees who have been requested to comply with drug and alcohol testing requirements and question how this may impact their human rights and privacy rights, please seek legal advice on the matter before proceeding.