A recent decision of the Federal Court of Appeal in Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182, addressed the validity of pre-placement and random alcohol and drug testing imposed by the Canadian Nuclear Safety Commission as a license condition to operate high security nuclear facilities.
The general rule is that employers may only require drug and alcohol testing of employees who are working in “safety-sensitive” positions. Whether or not a position is “safety-sensitive” depends on the specific factual circumstances and the nature of the workplace. One of the key factors in determining whether an employee’s position is safety-sensitive is the extent to which an employee’s impairment would place the physical safety of that employee, other people, or property at risk.
[R&A comment – Look closely at this definition and consider how many of your employees operate in safety-sensitive positions. If there are, then you can consider a drug and alcohol testing program for employees in those job positions that are safety-sensitive positions. We discuss this in more detail in this blog post.]Even where a position is safety-sensitive, testing is generally only permissible in limited circumstances. At its most basic, these permissible categories include testing:
For cause (reasonable suspicion testing)
After an accident or near miss (post-incident testing)
Unannounced, as part of a return-to-work plan (after a program violation and/or accommodation)
Randomly, only if it can be shown that there is an existing problem with drugs and/or alcohol use in the workplace that threatens safety, and that random testing will decrease that risk to safety.
Drug and alcohol testing has generally been held to be impermissible for employees who do not work in safety-sensitive positions. Courts and tribunals have held that to refuse employment or to discipline an employee only because of positive drug or alcohol test results may constitute discrimination on the basis of disability (such as addiction).
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
