Can You be Fired for Testing Positive on a Drug Test?
An arbitrator recently held that Air Canada had the right to test a flight attendant’s hair for use of marijuana. While most of Air Canada’s employees are unionized, this does raise a question for non-unionized employees as well. In what instances can an employer test for drug use? If it does, can a positive result lead to termination?
Can a positive drug test lead to termination?
Non-federally regulated employers in Ontario are able to dismiss employees for any reason, so long as they are given proper notice or pay in lieu thereof, and that the termination does not violate the Employment Standards Act, 2000 and is not based on any discriminatory grounds. If an employer makes the decision to terminate you based on the results of a drug test, so long as you are given proper notice, then you may not have any recourse.
Whether a positive drug test would provide legal justification for a termination for cause (thus disentitling the employee to notice of termination and/or severance pay) likely depends on the type of workplace and the danger posed by being under the influence of drugs. The more safety-sensitive a workplace is (such as, in the example provided, flight attendants responsible for the safety of passengers during flight), the stronger an employer’s case would be for summary dismissal for a positive drug test. Further, an employer would have to prove a connection between the alleged impairment and an inability to perform job duties.
Does a positive drug test justify termination for cause?
However, addiction falls under disability, a protected ground under the Ontario Human Rights Code. If a positive drug test results arises from a worker’s addiction, disciplinary action such as termination may be seen as discriminatory, even in a safety-sensitive workplace. An employer would have a duty to accommodate to the point of undue hardship if an employee has a disability or perceived disability.
Recreational or casual users of drugs who are not perceived to have an addiction would not fall under this category of protection from the Human Rights Code. For employees like that, the main recourse to a termination based on a positive drug test would be as described above. The employee could fight for a proper severance package, or in the case of a termination for cause, argue that the high bar for summary dismissal was not met, and that they are still entitled to a proper severance package.
Can random drug testing lead to constructive dismissal?
Further, random drug testing versus testing in scenarios where there is reasonable cause to suspect impairment, right after a workplace accident, or after an employee’s recent returned from drug addiction treatment, raises potential privacy concerns. The more safety-sensitive a workplace is, the easier it will be for an employer to justify the drug tests. Outrageous and excessive random drug testing could contribute to an argument of constructive dismissal, and thus entitlement to a severance package. However, this depends on the facts of each matter; an experienced employment lawyer can give a useful assessment of the strength of such a claim.
What should you do if you face disciplinary action for a positive drug test?
It can be scary to be disciplined for a positive drug test, or to even have your employment status held in limbo as the employer investigates. The expert employment lawyers at Whitten & Lublin can help you assess the situation, chart out next steps, and fight to enforce your rights. If you would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.