*Please note that web sites for cases referenced are in the legal overview


1. Federal Human Rights Commission Policy – Revised October 2009

  • In June 2002, subsequent to the Imperial Oil/Entrop decision of the Ontario Court of Appeal, the Federal Commission reviewed its policy on testing, and took a position that somewhat mirrored the Court decision. Reasonable cause, post incident and follow-up alcohol and drug testing were found acceptable (subject to meeting bfor standard), as was random alcohol testing for safety-sensitive positions. At that time, the Commission policy did not find pre-employment or random drug testing acceptable. They noted that those who test positive must be accommodated up to undue hardship.
  • In the first Tribunal hearing at which the new federal policy was considered (Autocar Connaisseur), the Tribunal ruled that "The Commission policy on testing is not binding on the Tribunal, and is nothing more than a statement of the Commission's opinion on the issue of drug and alcohol testing, an opinion that the Tribunal may agree with or not, as it sees fit." The Tribunal upheld the company's policy which included random alcohol and drug testing for bus drivers without reference to cross-border services.

Subsequent to the Tribunal ruling, and in consideration of subsequent decisions, the Commission's policy on workplace programs and testing was revised, and is now posted on their web site. The Commission confirms this is not the law, but for federally regulated employers, the policy does provide the Commission's interpretation of the human rights limits on testing. It also confirms the obligation of employers to accommodate any applicant or current employee who tests positive and has an alcohol or drug dependency.

Briefly, the Policy states that testing would be acceptable in the following situations provided it is part of a broader program of medical assessment, monitoring and support:

  • alcohol and drug testing for "reasonable cause" where an employee reports for work in an unfit state and there is evidence of substance abuse;
  • alcohol and drug testing after a significant incident or accident has occurred and there is evidence that an employee's acts or omissions may have contributed to the situation;
  • following treatment for drug or alcohol abuse, or disclosure of a current alcohol dependency or abuse (they note usually a physician or substance abuse professional will determine whether follow-up testing is necessary for a particular individual)
  • on a random basis for alcohol provided the employee holds a safety-sensitive position.

In addition, pre-employment and random alcohol and drug testing is acceptable for commercial bus operators and truck drivers provided employees who are drug dependent are accommodated. Employers may be able to justify random and pre-employment testing for other safety-sensitive positions provided they establish testing is a bona fide occupational requirement.

The full policy can be found at: http://www.chrc-ccdp.ca/eng/content/policy-alcohol-and-drug-testing

2. Provincial Human Rights Commission Policies

A number of the provincial commissions have revised and reissued their policies on workplace programs and testing.

Alberta: Alcohol and Drug Dependencies in Alberta Workplaces March 2012 http://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/protected_grounds/drug_and_alcohol_dependencies.asp

Manitoba: http://www.gov.mb.ca/hrc/publications/policy/policy_drugs-and-alcohol.html

Ontario: (minor technical revisions 2009) http://www.ohrc.on.ca/en/resources/Policies/PolicyDrugAlch

New Brunswick: their policy is not currently posted.

Newfoundland and Labrador: http://www.justice.gov.nl.ca/hrc/publications/index.html

Northwest Territories: their policy is not currently posted

Prince Edward Island: (updated 2010) http://www.gov.pe.ca/humanrights/index.php3?number=1037797&lang=E

Saskatchewan: (updated 2011) http://www.shrc.gov.sk.ca/publications.html

Although the other Commissions do not have specific statements on testing, they do provide guidance on discrimination because of a disability and employer obligations regarding accommodation.

British Columbia: http://www.cba.org/bc/public_media/rights/236.aspx

Nova Scotia: http://humanrights.gov.ns.ca/search/node/duty%20to%20accommodate

Nunavut: Human Rights Tribunal http://www.nhrt.ca/english/home

Quebec: http://www.cdpdj.qc.ca/en/Pages/Default.aspx

Yukon: http://www.yhrc.yk.ca/6-hr_workplaces.htm