The Canadian Human Rights Act Sec-
In
Canada...The employer cannot terminate an employee simply because they failed a drug and or alcohol test.
tion 15 states: 1. It is not a discriminatory practice if 2. Any refusal, exclusion, expulsion, suspension, limitation, specifica- tion or preference in relation to any employment is established by an employer to be based on bona fide occupational (BFOR) requirement The Canadian Human Rights Act Sec-
tion 15.2 states: For any practice mentioned to be
considered a BFOR it must be estab- lished that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accom- modate those needs, considering health, safety and cost. In 1999 in what has become known as
the Meiorin Case, the Supreme Court of Canada established a three-part test, which employers must meet to justify employ- ment practices, which would otherwise be found to discriminate. Te decision out- lined a three-part test commonly referred to as the Meiorin test. If a complainant has shown that the standard or requirement is prima facia discriminatory, the employer must prove that, on a balance of probabili- ties, the standard (BFOR): • Was adopted for a purpose that is ra- tionally connected to job performance
• Was adopted in an honest and good faith belief that the standard is neces- sary for the fulfilment of that legiti- mate purpose
• The practice is reasonable necessary for the fulfilment of the work related purpose. In order to meet this last requirement the employer must show: a. That the employment practice which has the discriminatory effect does, in fact, achieve the purpose
b. Tat the practice does not go farther than necessary to achieve the purpose
c. That, to the point of undue hard- ship, the employer has attempted
38 datia focus
to accommodate individuals who suffer a discriminatory effect be- cause of the employment practise. You must have a clear understand-
ing that drug testing cannot measure impairment and that a positive drug test is evidence that a person has a particular drug(s) in their body at or above the guidelines. The positive drug test cre- ates a response whereby you remove the person from safety sensitive duties and direct them to a Substance Abuse Professional for assessment. The action you take and return to work conditions will be based on the assessment and treatment if required. Breath alcohol testing can measure levels of impairment; however, your response will be the same as in a positive drug test. Suspensions can be with or without
pay typically based on the best practices as identified by your Human Resources people. If an employee fails to attend for an assessment or to comply with the rec- ommendations of the Substance Abuse Professional they cannot be returned to their safety sensitive duties. In the event an employer introduces a
drug and alcohol testing policy they must be prepared to defend their position if re- quired. Tey may be required to satisfy that they have met the Meiorin requirements.
CONSIDERATIONS: Implementation of your program should include the following: • Development of a policy that clearly states why you are testing, what posi- tions you are testing, when you are testing, how you are testing, what you are testing for, standards for testing, prohibitions, consequences of viola- tions and how you will meet your duty to accommodate
• Identify the positions that will be consid- ered safety sensitive. Ideally the positions would be identified with the assistance of a hazard or risk analysis, which most
spring 2012
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