Random drug and alcohol testing of employees in safety sensitive positions has been common in the United States for a number of years. In fact, it is not unusual for an employment agreement to contain a term which expressly requires the employee to consent to random testing during the course of their employment if requested by the employer.
Historically, the Canadian approach to drug and alcohol testing in employment has been very restricted. Employers are not permitted to conduct random drug and alcohol testing even where the employees work in safety sensitive positions. Testing will only be allowed in specific circumstances including but not limited to where there has been an incident and there is reason to believe that drugs and alcohol may have been a contributing factor or where it is a bona fide part of a plan of accommodation or rehabilitation.
Over the last few years, a small group of employers in Canada have sought to impose random drug and alcohol testing standards for employees in safety sensitive positions. This has triggered a vigorous debate between employers on the one side and employees and unions on the other. The central question is whether random drug and alcohol testing is reasonable or whether it amounts to a breach of the employee’s right to privacy.
Most people who support random testing will agree that it should be restricted to individuals in safety sensitive positions, for example people who work with heavy equipment that can cause damage to property or people. But what about jobs that may have a more direct impact on the public at large? Should TTC operators, school bus drivers or taxi cab drivers be required to submit to random testing?
Most people agree that society as a whole has a significant interest in ensuring that individuals in these positions are not reporting to work under the influence of drugs or alcohol. But there is another side to the argument. The people in these positions feel that they are unfairly singled out without justification. There are relatively few occurrences of TTC operators, school bus drivers or taxi drivers being found under the influence while operating these vehicles, and consequently these people question why there is a need to subject them to a form of testing which, in a way, presupposes misconduct? Moreover, individuals in these positions feel it is a violation of their right to privacy to be subjected to random tests which can disclose information about they do in their free time (in other words, time spent outside of work).
This ethical and social debate will not be resolved to everyone’s satisfaction anytime soon. But what may be resolved soon is whether or not random drug and alcohol testing of employees will be permitted in Canada and if so, under what conditions. An appeal was heard by the Supreme Court of Canada in December of 2012. The Court is reflecting on the issues raised in the appeal and is expected to deliver its decision soon. Hopefully, this decision will provide clarification so that employers and employees will be able to determine their respective rights.
For now, employers should be cautious on implementing random testing requirements. The best course of action may be to wait for these decisions to be released before seeking to implement these requirements or before revising existing policies.