Pre-access Drug and Alcohol Testing Rejected in Ontario

Drug and alcohol testing of employees in the construction industry continues to be an area of concern and constantly developing law for employers. An arbitration award out of Ontario recently held that pre-access testing was an unreasonable exercise of management rights and it was in violation of the applicable human rights legislation. The arbitrator relied heavily on the Irving Pulp and Paper Ltd. ruling that there was an obligation upon employers to justify the invasion upon employee privacy rights occasioned by drug and alcohol testing. If this award is followed, it means an employer must show a pre-existing drug or alcohol problem at its worksite before it can implement random testing or pre-access testing. Moreover, it appears an employer will not be able to rely on general statistical averages regarding substance use in the region, or on effectiveness of similar programs for other employers to show a problem. At a minimum, an employer implementing drug testing will need evidence that those statistical averages relate to the worksite in question and, more likely, will require actual evidence from its own specific workplace before it can justify not-for-cause testing. Once it clears this hurdle, employers will still be faced with showing that the testing is reasonably balanced against privacy rights by showing that the policy is effective and impairs employee rights to the minimal extent necessary.

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