In June 2002, subsequent to the Imperial Oil / Entrop decision, the Federal Commission reviewed its policy on testing, and took a position that somewhat mirrors the decision, but not totally. Although there was no ruling on the drug testing components of the Imperial Oil policy, the Commission policy takes a stand similar to the Court’s comments (obiter) on drug testing but not completely. Reasonable cause, post incident and follow-up alcohol and drug testing are acceptable (subject to meeting bfor standard), and random alcohol testing is acceptable for safety-sensitive positions.

The Commission policy did not find pre-employment or random drug testing, and testing as a condition of certification to a safety-sensitive position acceptable. Those who test positive must be accommodated up to undue hardship. For the motor carrier industry, compliance with U.S. regulations is deemed to meet the bfor requirement.

In the first Tribunal hearing at which the new federal policy was considered (Autocar Connaisseur and MIlazzo), the Federal 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.” It also upheld the Autocar policy to include pre-employment and random drug testing, including for drivers who remain operating in Canada.

http://www.chrc-ccdp.ca/legislation_policies/
alcohol_drug_testing-en.asp (English)
http://www.chrc-ccdp.ca/legislation_policies/
alcohol_drug_testing-fr.asp?lang_update=1 (French)

The Commission is apparently revising it’s policy yet again to take into account the Autocar Connaisseur decision on testing.

2. Alberta Human Rights and Citizenship Commission Policy

The 2003 version of the Commission policy essentially highlighted the decisions in Entrop and Elizabeth Metis (outlined in the legal overview). At that time, the Commission’s position was that drug and alcohol testing are only allowable in certain circumstances, and that it is discriminatory to test potential or existing employees for drug and alcohol use if there is not a valid reason to test. They noted that human rights law in this area is evolving and there is little case law in Alberta.

Drug and alcohol dependencies and perceived dependency are forms of disability, and employers can not discriminate on the basis of a disability. Asking about or testing for a condition that is a disability is allowed only where the disability would effect the employee’s ability to do their job. The Commission reissued an Information Sheet on Drug and Alcohol Testing in August 2004 to add a summary of the Autocar decision (outlined in the legal overview). Their position has not changed:

1. Drug and alcohol testing are only allowable in certain circumstances.
2. it is discriminatory to test potential or existing employees for drug and alcohol use if the testing is not reasonable and justifiable.
3. There is a duty to accommodate persons with disabilities in the
   workplace, up to the point of undue hardship. Drug and alcohol dependency, whether perceived or real, fall within the meaning of disability under the Human Rights, Citizenship and Multiculturalism
   Act.

   They note the law continues to evolve and encourage employers to examine their drug and alcohol testing policies to determine if they
   satisfy the provisions of the Act and comply with the case law.
   Guidance on how to make a complaint is also provided. The
   policy is found at:

   http://www.albertahumanrights.ab.ca/publications/
   Information_Sheets/Text/InfoDrug_Testing.asp

3. Ontario Human Rights Commission Policy

The Commission revised and reissued its’ policy on testing in September 2000 after the Imperial Oil/Entrop decision was released. It recognizes it is a legitimate goal for employers to have a safe workplace, but states testing is controversial, and in the area of drug testing, limited in effectiveness as an indicator of impairment. The policy supports testing that can measure impairment.

The Commission interprets that abuse and dependence would be a disability within the meaning of the Human Rights Code, confirms the obligation to accommodate someone with a disability, and restates the Supreme Court test to establish a bona fide occupational requirement. They reinforce their support for comprehensive workplace health policies that may include such programs as EAPs and drug education and health promotion programs. Regarding testing:

1. The justification for pre-employment testing is questioned and direction is given to notify job applicants of any testing requirement at the time an offer is extended.
2. Random drug testing is not acceptable; random alcohol testing is acceptable for safety-sensitive positions.
3. For cause and post incident testing is allowed as part of a broader investigation into substance abuse.
4. Testing procedures must be accurate. Consequences of a positive result must be case specific.

   The Commission’s most recent policy is found at:

   http://www.ohrc.on.ca/english/publications/
   drug-alcohol-policy.shtml (English)
   http://www.ohrc.on.ca/french/publications/
   drug-alcohol-policy.shtml (French)

4. Saskatchewan Human Rights Commission Policy

The Commission issued its policy in November 2000. It confirms an employer is not expected to tolerate unacceptable work performance, but since drug or alcohol dependency is a disability, the employer must take reasonable steps to accommodate the individual up to undue hardship. The Supreme Court test for a bfor is referenced, as is the result of the Imperial Oil/Entrop case. It states that am employer must establish a good faith case for the introduction of testing, and the consequences of a positive test must be reasonable. It also discusses the range of circumstances for testing, and confirms that when testing takes place may be critical in determining whether it can be justified. The results of the Entrop case are noted.

When looking at allegations of discrimination, the Commission set these principles:

1. Testing does identify persons with disabilities and does target them for discriminatory treatment. Therefore in most situations it will not be allowed under the Code.
2. Testing will only be acceptable in exceptional circumstances that must be justified by the employer in accordance with the criteria established by the Supreme Court of Canada.

   The full text can be found at:
   
   http://www.gov.sk.ca/shrc/policy/policy4.htm

5. New Brunswick Human Rights Commission Guideline

The Commission issued a guideline in October 2003. It confirms that discrimination on the basis of a disability is prohibited, and interprets that dependence on alcohol or drugs is a disability although it is not specifically stated. The guideline highlights alternatives to testing. It refers to the need to establish testing as a bona fide occupational requirement consistent with the Supreme Court tests, and that there is a duty to accommodate individuals with a dependency up to undue hardship. Criteria that the testing process should meet are highlighted

1. It states testing may be allowed for safety-sensitive applicants after a conditional offer of employment in limited circumstances, although the conclusions suggest it is prohibited.
   
2. Drug testing may be allowed in reasonable cause, post incident, post treatment situations as part of a larger process of drug abuse evaluation, but not in pre-employment or random situations
   
3. Alcohol testing may be allowed in reasonable cause, post incident, and post treatment situations as part of a larger process of drug abuse evaluation, and on a random basis for safety-sensitive positions.

   Full text of the Guideline is found at:

   http://www.gnb.ca/hrc-cdp/e/Guideline-
   on-Drug-and-Alcohol-Testing-in-the-Workplace.pdf (English)
   http://www.gnb.ca/hrc-cdp/f/Ligne-directrice-depistage-alcool-et-
   drogues-au-travail.pdf (French)

6. Prince Edward island Human Rights Commission Policy

The Commission issued a policy, “Your Rights: Addiction and Alcohol/Drug Testing” in March 2001. It reminds employers that alcohol or drug addiction is considered a disability, and that any business offering accommodation or services to the public must accommodate persons with disabilities to the point of undue hardship. They note that reasonable accommodation does not include allowing an employee to be at work while under the influence, or continuing to employ an employee who refuses to do anything about their addiction. However, accommodation would usually include granting the employee leave to seek treatment and allowing them to return to work when able.

The Commission notes this area of human rights law is still developing and that the provincial Act does not reference testing. They do not provide direction to employers, but do provide highlights of the Entrop/Imperial Oil decision.

Text of the Policy is found at:

http://www.gov.pe.ca/photos/original/hrc_drugs_alcho.pdf