Joe's Question: I am an owner of a non-unionized company that operates heavy machinery in Ontario. In order to ensure the safety of my employees, I would like to implement random drug tests. Can I legally do that?
Thank you for your question Joe. In order to answer your question it is important that we look at the reasons for alcohol testing, employee privacy, human rights, balancing safety and privacy/human rights, justifying alcohol testing in the workplace, and random testing.
1. Reasons for Alcohol Testing:
Employers have a duty to provide their employees with a safe work environment. Employers must therefore, take all reasonable steps to prevent harm from occurring in the workplace.
Damage caused by an employee’s use of alcohol include:
- Property damage;
- Injury or loss of life to the impaired employee, other workers, or third parties;
- Loss of productivity;
- Workplace violence;
- Workplace harassment;
- A loss of morale in the workplace; and/or
- Damage to the employer’s image.
2. Employee Privacy:
Alcohol testing is a serious invasion of an employee’s privacy as it involves intrusion into the actual body of the employee. When an employee is tested, they are required to surrender bodily samples under restriction of movement, with the threat of discipline up to and including termination. Alcohol testing is often compared to workplace searches and seizures.
3. Human Rights:
Human Rights Legislation in Ontario prohibits discrimination against an employee on the basis of disability. As an alcohol addiction is considered to be a disability under the Ontario Human Rights Code, alcohol testing in the workplace could result in discrimination based on disability.
4. How Can Employers Balance Safety against Privacy/Human Rights?
The Supreme Court of Canada has held that when it comes to alcohol testing, employers must carefully balance the safety of their employees against the employees’ right to privacy and their human rights.
5. Justifying Alcohol Testing in the Workplace:
To justify alcohol testing in the workplace, an employer must establish that it is a bona fide requirement. In other words, the employer must show that they cannot accommodate employees with a disability without undue hardship to the business.
Employers must therefore show that:
- Alcohol testing in the workplace is rationally connected with the operation of heavy machinery;
- The testing has been adopted in an honest and good faith belief that it is necessary to create a safe workplace environment;
- The testing is as minimally invasive as possible; and
- The employer has accommodated disabled employees to the point of undue hardship.
6. Random on the Job Testing:
The Supreme Court of Canada has confirmed that random testing is not automatically justified on the basis that the workplace is dangerous or that the employees are in safety sensitive positions. A connection needs to be established between impairment and an employee’s ability to perform their job duties.
As impairment has a direct connection with your employees’ ability to safely operate heavy machinery, you may have a case for implementing random on the job testing in your workplace.
As the employer, it is your responsibility to provide your employees with a safe workplace environment. As there is a direct connection between impairment, and the employees’ ability to operate heavy machinery, you would likely be able to establish random alcohol testing as being a bone fide requirement in your workplace.
8. Suzanne Desrosiers Professional Corporation:
For more information, or to book an appointment please contact Suzanne Desrosiers today, at firstname.lastname@example.org or 705-268-6492.