Should Employers be Allowed to Conduct Drug or Alcohol Tests on Workers?
Employee drug testing, a common practice in the United States has recently been
adopted by some Canadian companies and institutions. Safety and security are the reasons
cited for such testing. Airline and other transportation companies, for example, perform
drug tests on their pilots and other employees to ensure security for their customers.
In 1990, the Toronto-Dominion Bank made it compulsory for newly hired
employees to supply samples of urine for drug-testing purposes. Urinalysis tests are used
to detect the use of cocaine, cannabis, heroin, or codeine. If drug use is detected, employees are sent for counselling or treatment; those who refuse are fired, as are those who test
positive for a third time.
As more companies adopt this policy, however, the question of individual rights
must also be considered. In the past few years there have been some seemingly
contradictory decisions by human rights commissions on cases involving drug testing of
employees. In 1994, the Canadian Human Rights Tribunal decided that the Toronto-Dominion
Bank’s drug-testing program did not trespass upon the civil rights of its employees,
although it did consider mandatory urinalysis an invasion of privacy.
The Ontario Human Rights Commission decided in 1995 that the substance abuse
policy of Imperial Oil discriminated against the civil liberties of Martin Entrop. He was
demoted in 1991 after he revealed that he had received treatment for alcoholism in 1984.
Entrop maintained that he had not had a drink in seven years at the time of his demotion. He was later reinstated on the condition that he undergo psychological treatment
and provide breath samples at the discretion of the company.
In its decision, the Ontario Human Rights Commission ruled that alcoholism is a
disease and is included under the human rights code that protects disabled people from
discrimination. These two decisions by different human rights boards seem contradictory,
although both appear to emphasize the civil liberties of the individuals involved.
On One Side The Toronto-Dominion Bank argued that its employees handle huge amounts of
money and that drug abuers are often involved with criminals who provide them with
drugs. These drugs are expensive, and the bank has a duty to protect the customers’
money. It was their position that the Charter of Rights and Freedoms should not be used to
protect illegal drug users. Mandatory drug testing helps to maintain the values of honesty
and trust that are vital to the integrity of the banking industry.
Imperial Oil developed its drug-testing policy because of the 1989 crash of the oil
tanker Exxon Valdez. The resulting oil spill caused untold damage to the environment and wildlife. Even though the captain of the tanker, a recovering alcoholic, was eventually
acquitted of being intoxicated at the time of the accident, the company felt that it was in its
best interests to develop a drug-testing policy for its employees to ensure the health and
safety of the general public.
On the Other Side
Alan Borovoy of the Canadian Civil Liberties Association argues that no person
“should be required to share urine with a stranger” to obtain employment. He wants
governments to make mandatory employee drug testing illegal. Borovoy maintains that “employers are entitled to know information relevant to their purposes, but not to conduct
inquisitions into an employee’s lifestyle and history…Such tests are a needless invasion of
privacy that will tell you a lot about a person’s lifestyle but virtually nothing about an
employee’s ability to do the job.:
Mr. Borovoy’s views were supported by the federal Privacy Commissioner (1993)
who opposed drug testing in the armed forces and other federal institutions: “Drug testing
is a major intrusion that is not offset by any significant benefits.”
The Bottom Line These two human rights cases seem to reflect the efforts of human rights
commissions to maintain a balance between protecting society as a whole while at the
same time ensuring individual rights and civil liberties. Some believe that companies and
institutions have the responsibility and the right to make rules to help create an
environment that is safe and secure for everyone. People do not have to apply for jobs if
they do not agree with the conditions of employment. They have that choice. Others agree with the Canadian Human Rights Tribunal’s observation that “it is not
for the employer to be the trier of fact and the enforcer of the criminal law.” What do you
think? You be the judge! QUESTIONS
1. Are there any circumstances or occupations for which it is either appropriate or
necessary for companies to conduct drug tests on their employees? 2. Why do recent decisions by human rights commissions appear to be contradictory? 3. When would drug testing be an invasion of an individual’s privacy or an interference
with his or her rights? 4. What would be your position if a company informed you that a drug test would be a
condition of employment?
ANSWERS 1. Are there any circumstances or occupations for which it is either appropriate or
necessary for companies to conduct drug tests on their employees?
It is standard procedure for airline and other transportation companies to perform drug
tests on their pilots and other employees to ensure security for their customers. The courts
and human rights commissions are in the process of determining whether or not it is
appropriate or necessary for other companies and/or industries to do the same.
2. Why do recent decisions by human rights commissions appear to be contradictory? Recent decisions by the Canadian Human Rights Tribunal and the Ontario Human Rights
Commission seem to contradict one another. A 1994 decision by the Canadian Human Rights
Tribunal stated that the Toronto-Dominion Bank’s drug-testing program did not trespass
upon the civil rights of employees. Later, a 1995 decision by the Ontario Human Rights
Commission on the substance abuse policy of Imperial Oil found that the policy did
discriminate because alcoholism is a disease and the Human Rights Code protects disabled
people from discrimination. 3. When would drug testing be an invasion of an individual’s privacy or an interference
with his or her rights?
According to Alan Borovoy of the Canadian Civil Liberties Association, no person “should be
required to share urine with a stranger” to obtain employment…employers are entitled to
know information that is relevant to their purposes, but not to conduct inquisitions into an
employee’s lifestyle and history.” Such drug testing is an invasion of a person’s privacy.
When could drug testing violate a person’s civil liberties? (Charter of Rights for hints) 4. What would be your position if a company informed you that a drug test would be a
condition of employment?
Answers will vary. Some will be opposed, many will be indifferent, and others will support a
company’s right to perform drug tests on potential employees. A strategy here would be to
have the students explain the reasons for their decisions.