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Workplace Drug Testing: U.S. versus Canada


drug-test-in-the-workplaceWorkplace drug testing has never been without controversy. Last year, two high-profile cases involving mandatory drug test in the workplace graced Canada’s courts, determining how far employers must go in screening workers for drug use. The companies that were at the center of legal battle were Irving Pulp and Paper in New Brunswick and Suncor Energy in Alberta.

Although the practice of drug testing workers is more prevalent in the United States than in Canada, the argument is often similar: the need for a safe workplace versus intrusion of privacy and human rights.

In the U.S., workplace drug testing began in the late 1980s when the Reagan administration implemented mandatory drug-testing for all safety-sensitive executive-level and civil-service Federal employees. In 1988, theDrug-Free Workplace Act was adopted which requires some federal contractors and all federal grantees to agree that they would provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency. Even though the Act does not require drug testing, some federal agencies had established regulations that included the implementation of drug tests. In 1991, the Omnibus Transportation Employee Testing Act was introduced in the transportation industry. Since then,  a considerable number of employers, including private businesses, have put a drug testing policy in place in an effort to provide workers a safe working environment and reduce rates of tardiness, absenteeism, high turnover, and drug-related accidents in the workplace.

In Canada, however, the story is different. Peter Deines of CannAmm Occupational Testing Services, the largest occupational drug testing company in Canada, told CBC News that drug testing is prevalent in only a few industries in the country, saying that the practice is mostly limited to “very safety-sensitive oriented workplaces.” These industries includes cross-border transport, energy production, heavy industrial construction, potash and industrial engineering.

“The amount of testing Wal-Mart does in the United States greatly exceeds the entire number of tests that are done in the Canadian market,” said Deines. “The tradeoff in Canada is between the privacy and human rights element and the duty to provide a safe workplace.”

According to the Parliament of Canada website, drug testing policies in government workplaces are subject to review under the Canadian Charter of Rights and Freedoms. Given that the Charter applies only to government actions and legislation, a non-legislated drug testing program in a private sector company would have to be challenged under either the Canadian Human Rights Act or provincial human rights legislation, depending on whether it pertains to a federally or a provincially regulated industry.

While employers in the U.S. are not heavily constrained in administering pre-employment and randomdrug testing provided they follow federal and state guidelines, the challenge for Canadian employers under their existing laws often involve random testing.

The Canadian Human Rights Commission draws a distinction between random testing for drugs versus alcohol. It argues that requiring a drug test “as a condition of employment may be considered a discriminatory practice on the ground of disability or perceived disability,” the CBS News reports.

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