By Yvette Farnsworth Baker, Esq.
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.
Canada and the United States share the longest international border in the world and have long enjoyed multi-layered economic ties. However, the countries are two sovereign states with different laws and different political systems. Workplace drug testing in the two countries therefore has similarities and differences. Any company that operates in both countries or that hopes to one day operate in both countries should consider the landscape of workplace drug testing in Canada.
WHAT IS DIFFERENT?
Lack of specific legislation
In the United States, most states have legislation that expressly references workplace drug testing. These laws often lay out specific testing procedures, what types of tests are permitted, when testing can occur, and much more. Unemployment and worker’s compensation regulations, as well as medical marijuana laws also often speak specifically to workplace drug testing, sometimes with very detailed requirements.
In Canada, on the other hand, there is no specific legislation that mentions workplace drug testing. However, human rights laws such as privacy and disability protections are implicated. Because these laws do not mention drug testing specifically, courts and arbitrators are asked to apply such laws to workplace drug testing on a case-by-case basis, resulting in a piecemeal collection of cases across Canada.
Legality of random testing
Random drug testing is legal and a common practice in nearly all states and territories of the United States. Random testing is even required under some laws, such as the U.S. Department of Transportation guidelines.
In contrast, random drug testing has been routinely prohibited by courts in Canada under human rights laws. Courts have required reasonable suspicion or a workplace accident (or “near miss”) in virtually all cases that upheld drug testing unless testing was specifically addressed in a collective bargaining agreement. Cases that have allowed random testing have involved safety-sensitive positions with testing that provides proof of current impairment (i.e., breathalyzer versus lab-based urine testing), and even these are few and far between.[1] Canadian courts by and large frown upon random drug testing and insist on some prerequisite cause such as suspicion of current impairment or an accident that could have been caused by impairment.
Disability protection
In the United States, the federal Americans with Disabilities Act (“ADA”) does not protect current illegal drug use, whether it is casual use or use related to addiction. The ADA specifies that any employee or job applicant who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.”[2] Thus, in the United States, testing for illegal drugs does not invoke ADA protections.
The Canadian Human Rights Act, however, defines drug dependence as a disability with no disqualification for current illegal drug use. This means that in Canada an employee with substance dependence has the right to be accommodated by their employer for their addiction just as anyone else with a disability.[3] This complicates workplace drug testing, as employers must be careful not to discriminate against employees with drug or alcohol addictions (or those who may be perceived as having an addiction). It is important to include provisions in a Canadian drug testing policy that provide disability accommodations for employees with drug dependency. Some such provisions can include permitting employees to self-identify any dependency issues in order to obtain help without discipline and providing rehabilitation options.
WHAT IS THE SAME?
Testing is permissible with the right policy
While some of the details of when and how workplace drug testing can occur may differ, both the United States and Canada do allow widespread workplace drug testing to occur. Drug testing is legal in all states in the U.S. and all provinces of Canada.
But in both countries, employers need the right policy in order to be successful. Across the United States, federal and state laws impact the program that is available to a particular employer. In Canada, law does not vary much, if at all, between provinces, but the requirements of the country’s human rights laws must be understood when drafting a policy. In both countries, companies need to consider the needs and limitations of their workplaces as well when crafting policies.
Department of Transportation requires testing of transportation workers
Truck drivers who transport between the United States and Canada are required to abide by the United States Department of Transportation’s (DOT) drug and alcohol testing rules. This is true regardless of which country the driver calls home.[4] Canadian drivers must follow DOT’s standards if they wish to transport goods from Canada to the U.S. or from the U.S. to Canada. These standards involve drug and alcohol testing including random testing, preemployment testing, and post-accident testing. Of course, American drivers are likewise required to follow the same DOT laws for all interstate transport within the United States.
Employees will come to work impaired by drugs and alcohol
Employers in both countries need to keep their workplaces safe, and in both countries a huge threat to safety is employees working under the influence of drugs or alcohol. Substance abuse is an ongoing problem in both countries, and substance-abusing employees can and do cause workplace accidents on both sides of the border. A well-written and correctly implemented workplace drug testing policy is possible both in Canada and in the United States, and the right drug testing policy can save lives and dollars for companies worldwide.
[1] B.C. Civil Liberties Association, Mandatory Drug and Alcohol Testing by Employers, 2015, https://bccla.org/privacy-handbook/main-menu/privacy5contents/privacy5-10.html#1
[2] 42 U.S.C. § 12114(a) (1994); 29 C.F.R. § 1630.3(a) (1999).
[3] Canadian Human Rights Commission, Impaired at Work: A guide to accommodating substance dependence, 2017, https://www.chrc-ccdp.gc.ca/sites/default/files/publication-pdfs/chrc_impaired_at_work_v2018-3_eng.pdf.
[4] Danatec, DOT, NON-DOT, and the Canadian Model for Drug and Alcohol Testing: What’s the difference?, October 27, 2020, https://news.danatec.com/dot-non-dot-and-the-canadian-model-for-drug-and-alcohol-testing-whats-the-difference-85797/.
