“Urine or You’re Out”: The changing law on random drug testing and the alternatives

Employers have an important interest in maintaining a safe workplace free from employees impaired by drugs. However, employees also have a right to reasonable privacy in the work environment. How can an employer screen for potentially dangerous impairment in a way that respects employee privacy and dignity? In what circumstances will drug testing be appropriate? When, if ever, is screening prospective employees permissible? This program addresses some of the controversies involved in workplace drug testing, including:

• How Drug Tests Work: Is urinalysis the main testing mechanism used to detect drugs? How reliable is urinalysis? Can a test return a “false positive” when an employee has ingested certain food or legal medications? Can a test return a “false negative” if altered by an employee? Can urinalysis confirm whether an employee is actually impaired at the time of the test? Are hair or saliva tests less invasive or more effective alternatives to urinalysis? Is a drug test more invasive of privacy than a breathalyzer test? Can testing reveal unrelated, private medical information about the employee to the employer?
• The “Balancing” Approach to Drug Testing: When will decision-makers apply the “balancing of interests” approach to determine if employee privacy and dignity outweigh the employer’s business interests?
• The “Risk” Approach to Drug Testing: When will decision-makers allow random drug testing on the ground that it is rationally connected to a need to eliminate safety risks in a hazardous work environment? Must the employer demonstrate that drugs are a problem in the workplace before testing is permitted?
• Safety-Sensitive Workplaces: What kinds of workplaces are considered particularly safety sensitive? What factors play a role in determining whether a workplace is safety-sensitive? The type of work done? The materials used? Is random drug testing permissible in a safety-sensitive work environment?
• Justifications for Testing? Is random drug testing permissible as part of a rehabilitative return-to-work arrangement? Is a post-accident drug testing policy acceptable? Can a co-worker’s complaint form the basis for a drug test? Does an employer have a responsibility to screen for drugs as part of its health and safety obligations? Should a proper accommodation program for substance abuse be in place before testing is permitted? Can Canadian employers require Canadian employees to undergo random drug testing if the employees routinely cross the Canada-US border to perform some of their work and United States law requires such testing?
• Pre-Employment Drug Tests: When can drug testing be done as a condition of employment, promotion or transfer? Can regular testing be required after this pre-screening? Can the owners of job sites require subcontractors to drug-test their employees as a pre-condition to granting those employees access to the job site?
• Employee Refusals: If an employee refuses to be tested, can an employer treat this as tantamount to a positive test result? If an employee has agreed to a “last chance agreement” that requires the employee to submit to random drug tests, can the employer dismiss the employee for refusing to take a test? Can drug testing be considered part of the “duty to accommodate” for an addicted employee?
• Medical Evaluation because of Suspected Drug Use: Can an employer require employees to submit to physician medical evaluations to check for impairments, including drug use, alcohol use or illness? Can an employee be disciplined for failing to submit to a medical evaluation?
• Consequences Flowing from a Test: Is firing an employee for breach of a drug policy discriminatory when the employee is a casual user but not addicted to drugs? Following a positive test result, what steps should an employer take to fulfill the duty to accommodate? Can an employer disclose information about an employee’s suspension after a drug test to another employer?
• Alternative to Drug Tests: Is sound supervision as effective as drug testing in ensuring safe and productive workplaces? What new technologies may assist employers to test alertness or impairment in less invasive ways than drug tests?