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So You Think You Can Drug Test?

By September 18, 2018November 28th, 2019Employment Law

With the upcoming cannabis laws coming into effect in one month today, we want to let you know about some things to keep in mind when thinking about drug and alcohol testing  and creating proper policies in your office if you suspect an employee comes to work drunk or high.

Drug testing is one of the most complex areas of employment law.  So, drug testing policies are complex. So if you are planning to come up with a drug testing policy in your office, a dentist needs to keep in mind one word: BALANCE.

A good drug and alcohol testing policy will BALANCE a worker’s privacy and the employer’s interest in ensuring workplace safety. In cases where a drug and alcohol testing policy was upheld by the courts, the employer usually demonstrated three important factors regarding workplace safety:

  • The safety interest is real and compelling;
  • Testing promotes the safety interest; and
  • The testing policy is as narrow and minimally invasive as possible to achieve the purpose.

So, if you are thinking about monitoring your workers for drugs and alcohol in your practice, keep these things in mind:

Drug testing is harder to justify than alcohol testing.

Unlike alcohol, cannabis (and other drugs) may remain in your system long after the buzz fades.  So, the fact that a worker tests positive for cannabis doesn’t necessarily mean they were impaired when they took the test.  For alcohol, when the test is taken, you know that the test accurately represents the immediate intoxication level. So, can a drug test help in determining if the worker was impaired?

Testing Is Easier to Justify for Safety-Sensitive Workers

In many legal cases across the country, judges and arbitrators have upheld that if an employee is in a safety-sensitive position, then drug and alcohol testing as a safety measure is justified.

Remember: A safety-sensitive position means a position that has a direct and substantial impact on the health and safety of the worker, other workers, customers, patients, visitors, the public, property and/or the environment.

Post-incident testing isn’t allowed if it’s overly broad

Say there is an incident in your office involving your assistant, and you have a suspicion that the employee was impaired at work; and so you want to test the employee for drugs and alcohol. This type of “post-incident testing” may actually get you in hot water if your drug testing policy or the way it’s applied is overbroad and/or leads to over-testing.

In other words, the fact that an incident occurs is usually not enough to justify post-incident testing without reasonable grounds to suspect that the worker was impaired.

Pre-employment testing is generally allowed for safety-sensitive positions

Testing a prospective employee is easier to justify when it’s used as part of a broader evaluation of a person’s fitness for a safety-sensitive job.

Testing policies must account for medical marijuana and drug addictions

Medicinal marijuana is already legal.  Recreational marijuana will be legal October 17.  These different types of marijuana should be specifically addressed in your office policies (just as alcohol is) and any drug testing policies.

Remember: use of medicinal marijuana, and dependency or addiction to a drug, may be considered a “disability” under Ontario’s Human Rights Code.  So, if it is considered a protected ground under the Human Rights Code, then you an an employer are obligated to reasonably accommodate that disability (up to the point of undue hardship).  In turn, that could mean that you may have to permit the employee to use medicinal marijuana at home – and any drug test may have to account and permit such use.

However, an important point to keep in mind is that recreational use of marijuana is not protected under the Human Rights Code. Medicinal marijuana (for which the employee would have a prescription and/or doctor’s note), and dependency or addiction (for which there may be a health practitioner’s note or doctor’s note) are protected.

So in other words, recreational users of marijuana (and alcohol for that matter) are not entitled to special consideration or accommodation in the workplace, and a drug testing policy for such an employee (who holds a safety-sensitive position) may be valid and useful.

Give us a call (416-443-9280) if you want to chat about how the upcoming legalization is going to affect dental offices in Ontario!

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.