Employment related drug testing has become a contentious issue in Canada. While some employers have implemented some form of drug testing and many more are still considering it, the extent of its legality has yet to be determined by the human rights commissions, arbitrators and the courts. This essay examines the legal implications of employment related drug testing in Canada by analyzing relevant human rights legislation, arbitral jurisprudence, and the Canadian Charter of Rights and Freedoms. In carrying out this analysis some reference is made to the legal developments in the United States.
The major conclusions of this paper are that employers considering a drug testing program should avoid pre-employment drug testing for most jobs and should only test existing employees in most jobs upon a reasonable suspicion of drug use. Employers must also take all reasonable precautions in drug testing so as to ensure accurate test results and limit the extent of invasion into employees’ privacy. Finally, employers would also be wise to assist or accommodate employees who test positive prior to considering any disciplinary action.
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