Mandatory Drug Testing and Employee Rights

Employment lawyer David Whitten was recently published in the November 21st issue of Canadian HR Reporter, a national journal for human resources professionals.  The article titled, “Deconstructing random drug, alcohol testing” tackles an issue that recently surfaced as a result of a fatal accident involving a TTC bus and its driver who was later convicted of drug possession.
The accident, which occurred in August of this year, caused the TTC to reevaluate their policy for drug and alcohol testing.  When words like “mandatory” were brought up, the TTC union and members of public raised the issue of employee privacy.  Whitten picks up from there in describing the risks and rewards of different policy options for HR managers.
Firstly, breathalyzer tests are less invasive of an employee’s privacy and less likely to be opposed. Why? Because the breathalyzer measures an employee’s impairment at the time of the test, whereas other tests can show drug use from weeks prior and are less accurate in determining impairment.
Policies that call for the immediate dismissal of employees who fail drug tests are generally rejected by courts, as addiction is a form of disability that employers have a duty to accommodate for.
Ultimately, Whitten says that the best measure is to abide by the “Golden Rule” – treat employees with the same dignity and respect that you would expect in similar circumstances.  For example, if an employee is in a position in which sobriety is required to uphold public safety, consider transferring them elsewhere while they seek help.  Compassion can go a long way in creating a positive corporate culture, and it will also go a long way in court, should your actions ever be challenged.