Compliance Briefing: Key Trends in Workplace Drug Testing
- adapted from the February 2020 issue of OHS Insider
The legality of workplace drug/alcohol testing comes down to a balance between competing interests:
- The employer’s need to maintain a safe workplace; and
- The workers’ right to privacy and, where the worker has a dependency or addiction, accommodations for disabilities.
It’s up to courts, arbitrators, human rights and other tribunals to strike this balance by ruling on actual disputes that then become precedent for subsequent cases. Marijuana legalization may embolden workers and increase marijuana use.
As a result, OHS directors should keep close track of cases that have come down since legalization in Oct. 2018. Here’s a briefing on 6 key takeaways from recent cases.
1. There’s a Big Difference Between Addiction & Casual Use
The legally appropriate response to a positive test depends entirely on the answer to one question: Does the worker have a dependency or addiction? If so, the worker is considered to have a disability requiring accommodation to the point of undue hardship. Immediate and automatic discipline for testing positive violates that duty to accommodate. But if the worker is just a casual user, disability discrimination laws don’t come into play and the company is bound only by its usual disciplinary policies.
2. Accommodation ≠ Letting Safety-Sensitive Workers Work Impaired
While a company may have to let workers use medical marijuana or other legal impairing drugs for a disability offsite; however, allowing use while working likely constitutes undue hardship, especially if the job is safety-sensitive.
3. Accommodation Works Both Ways
The duty to accommodate typically requires that the company carries out a medical assessment of the worker’s capabilities to determine what accommodations are appropriate. Workers must provide the medical information required to make an assessment. The company’s duty to accommodate ends if workers unreasonably withhold this information, obstructs or otherwise fails to cooperate.
4. Generalized Suspicion Doesn’t Justify For-Cause Testing
While less controversial than random testing, for-cause testing can also generate grievances. Employers need to be careful not to abuse for-cause testing policies by treating anything and everything as a trigger for testing, including a general suspicion of workplace drug/alcohol use at the site.
5. The Evidence Counts as Much as the Law
When an employer loses in court, the main reason is usually lack of evidence. In other words, having the law on one’s side doesn’t help if there is a lack of proof.
To read the full article, click here. Also note that the issue contains a Model Drug & Alcohol Testing Policy on page 4.