We’ve recently received a lot of questions about our employee drug testing policy. What better way to address this question than with a blog!
You may think an addiction treatment facility has special privileges on monitoring employee drug and alcohol use. Not the case. While a drug rehab, SCHC is also a business. As a Canadian employer, we follow the same rules as every other organization when it comes to employee drug testing.
Canadian Employee Drug Testing Laws
Employee drug testing is a sensitive matter lined with many complications. On top of that, there is no Canadian legislation for workplace drug testing. Legal situations usually rely on past court & tribunal decisions and the Human Rights Act for guidance. Rules sometimes differ between provinces as well. For example, Alberta permits pre-employment drug testing for some high safety-sensitive workplaces that aren’t BFOR certified (for information on BFOR certification, see further down).
Drug Testing Methods
While the most commonly used method for employee drug testing, urinalysis definitely has its limitations. Urinalysis can show false positives (from ingesting poppy seeds, OTC medications, and herbal tea) or false negatives (urine altered by salt, vinegar, eye drops, and bleach). This method can also reveal highly private information like pregnancy, prescription use, and health conditions (e.g. HIV/AIDS) that an employee may have not disclosed. As a result, many believe urinalysis violates individual privacy and dignity. Most importantly, urinalysis cannot accurately test if someone is impaired at the time of testing.
Hair testing is also unreliable because drugs can appear in hair (depending on length) months or years after use. Results can be skewed by bleached or dyed hair as well. Because drugs bind better to Melanin, individuals with dark hair are subject to unfair biases as well. At best, hair testing can only detect traces of drug use, not if an employee is impaired at work.
Drugs can be detected in saliva hours after use, but they can also remain in saliva for up to 3 days. While alcohol lasts less than 12 hours in saliva, Methamphetamines and THC are shown to stay in saliva for up to 3 days after use. Like urinalysis, false negatives and positives can also happen. Brushing, flossing, mouthwash, and other oral hygiene products can obscure test results.
While more effective in testing alcohol levels, breathalyzers cannot test for drugs and is not permitted in most workplaces. Currently, only commercial truck driving companies and other similar BFOR organizations can use breathalyzers in their workplaces.
Types of Drug Testing Situations
BFOR (Bona Fide Occupational Requirement)
Most companies cannot justify or partake in discriminatory drug practices unless they’re BFOR certified. BFOR employers can use drug testing when they have ‘reasonable cause’, after an incident where substance use is suspected, and following disclosure or treatment of substance abuse/dependency. A new court ruling in June 2013 found it unreasonable to randomly drug test in any workplace.
Workplaces that aren’t safety-sensitive cannot qualify for BFOR. To be considered for BFOR certification, some other factors must be considered first.
- Is the employee under direct supervision?
- Are there less invasive alternatives to drug testing to determine safety?
- Is there evidence of prevalent drug use in the organization’s industry?
- Does the employer provide comprehensive support for treatment programs?
- Is the employer required to comply with other legislations or regulations (e.g. occupational health and safety)?
Pre-employment Drug Testing
Pre-employment drug testing is generally not permitted in this day and age. Even in ‘safety-sensitive’ positions – where employee behaviours may impact the health and safety of themselves, coworkers ,and/or the public – Canadian courts have decided testing before hiring or enforcing zero-tolerance policies is discriminatory under the Human Rights Legislation. It is permitted in limited circumstances like for BFOR employers. In safety-sensitive positions, an employer may be able to justify drug-test during the hiring process if the applicant has disclosed a history of substance abuse or a physician finds reasonable cause after examination. If a potential employee tests positive, an employer must first accommodate the individual, to the point of undue hardship, before withdrawing an employment offer.
Disclosure of Drug use
Disclosing prior drug use is also only permitted for safety-sensitive occupations. Asking employees to disclose such information in non-safety-sensitive workplaces is not appropriate. Additionally, an employee cannot be dismissed for not disclosing past drug use because ‘denial’ is believed to be a common symptom of addiction.
Potential and current employees should not be disciplined when asking for help with substance dependency issues. In fact, employers are expected to provide individualized accommodation measures. Depending on the situation, employers may be able to drug-test an employee returning from addiction treatment for a reasonable period of time.
Random Drug Testing
This type of drug testing is considered unreasonable in most situations, especially in non-safety-sensitive positions. As I noted earlier, drug tests can only confirm drug or alcohol use at some point in time; it cannot differentiate between current impairment or past use. For this reason, random drug testing does not achieve the purpose of ensuring employees are not impaired while working; rendering it ineffective, obsolete, and inappropriate. Only commercial driving companies and other similar BFOR employers currently can impose randomized breathalyzers tests as long as they accommodate employees who test positive and are diagnosed as drug or alcohol dependent.
Post-Incident or ‘Reasonable Cause’ Drug Testing
If an incident occurs and an employer has reasonable grounds to suspect an employee was impaired during the incident, they may be able to justify drug testing. Testing should only be considered when an employee’s on the job behaviour gives grounds for reasonable cause.
Again, the challenge with post-incident drug testing is the results don’t show current impairment, only that an employee has consumed drugs or alcohol in the last 1- 3 weeks. For this reason, perform post-incident drug tests as soon as possible and include additional, and more reliable, evidence in your case for suspected drug/alcohol use.
As you can see, the laws for drug testing are limited. Because Sunshine Coast Health Center is not a safety-sensitive workplace, we cannot drug-test employees beyond reasonable limits. We cannot screen or prohibit job applicants with past or current drug use without first accommodating them to the best of our abilities. We can also only drug-test employees if we have reasonable cause to believe they’ve been impaired while working.