When Alex Treiber thinks about workplace drug and alcohol testing in Canada, he often starts by talking about what’s happening south of the border — because it can help dispel common myths among employers and workers alike.


“It’s interesting because in the U.S., for example, mandatory drug and alcohol testing is almost a common feature or precondition of employment,” said Treiber, founder and principal lawyer at Treiber Law in Toronto. “A lot of employment offers say ‘Please subject yourself to a pre-employment drug test for an office job.’ That’s just nothing something that’s going to be found in the Canadian landscape.”

On this side of the border, the key word is “proportionality” with a close examination of workplace safety, privacy, human rights and accommodation, he said. In Canada, there needs to be evidence of substance abuse in the workplace before testing can take place.

“And even then, when there is a demonstrated problem, testing of a particular employee is going to be dependent on whether the employer has reasonable grounds,” said Treiber.

For example, was the employee visibly impaired while on duty? Was that person involved in the workplace accident or incident that is giving rise to the need to test? Is the worker returning after treatment for substance abuse? There are a lot of questions to consider, he said.

Plus, the rules can also vary between unionized and non-unionized workplaces, as collective agreements often contain specific provisions around testing, said Treiber.

The CPKC case

Back in October 2022, Canadian Pacific Kansas City (CPKC) fired a unionized worker who refused to take a drug test following a minor derailment.

Acting on the orders of his supervisor, the worker backed a 10-ton boom truck through a switch that was not properly aligned. After the accident, in which nobody was injured, the company demanded he submit to a test — but he refused.

“I feel like I’m the one being targeted, that it’s my fault for following my boss’ instructions,” the worker said during an investigation interview.

CPKC fired him, arguing the refusal was a violation of its alcohol and drug policy. The union grieved the dismissal, and it was overturned at arbitration. The arbitrator emphasized the need for proportionality in the balance between workplace safety and employee privacy.

“The evidence confirmed that the hi-rail truck went through the switch,” the arbitrator said. “But that is not sufficient, by itself, to proceed with drug tests.”

CPKC was ordered to reinstate the worker, with back pay, to his role.

Treiber said that ruling showed the problem with jumping to a conclusion that a worker involved in an incident is impaired. The proper approach is to investigate and get a contextual understanding of what happened.

“In that case, there was some confusion over what the instructions were from the individual’s supervisor,” he said. “Just because there’s an incident doesn’t necessarily mean we can jump to, ‘OK, we’ve got to do a drug and alcohol test.’ There’s going to be reasonable grounds that the individual was in fact impaired.”

The duty to accommodate

While an employer may think being drunk or high on the job would be automatic grounds for termination, that’s not always the case, according to Stuart Rudner, an employment lawyer, mediator and founder of Rudner Law.

First up, the employee’s history needs to be considered — was the worker previously on a treatment plan for substance abuse? Or is it the first time?

“Just because they did get high, whether they got high at work or arrived high, doesn’t matter either way,” he said. “If there is evidence of addiction, It triggers the duty to accommodate, which is always to the point of undue hardship. Which means there is an expectation the employer may have to endure some hardship.”

Earlier this year, the Alberta Court of King’s Bench ruled that Lafarge Canada was justified in firing a long-tenured worker who test positive for THC — the active ingredient in cannabis — following a minor fender bender.

The man, hired in 1981, was terminated but it wasn’t the accident itself that led to the termination. It was “his refusal to undergo a substance abuse assessment and participate in the (substance abuse program),” the court said.

“Faced with an employee who had a positive drug test, Lafarge had no alternative but to insist on compliance with its Drug and Alcohol Policy which I have found to be reasonable,” the court said. “Lafarge is required by law to maintain a safe workplace and could not, in the face of a positive drug test, accede to (the worker’s) position that he not be required to participate in the SAP or be subject to random drug testing.”

Treiber said part of the conditions for a return-to-work following a positive test can be participating in a substance abuse program or undergoing testing.

“And if like, in the Lafarge case, they refused to comply, then their employment is going to be terminated,” he said, noting that it can characterized like a “last-chance agreement.”

Do you need a policy to test?

While having an alcohol and drug policy in place is a best practice, Rudner said the lack of one does not tie the employer’s hands. That’s because you don’t need a policy to justify disciplinary action, he said, and not everything needs to be spelled out.

He was once asked at a conference if the employer could discipline a worker who fell asleep on the job if its policy didn’t expressly forbid it.

“There are some things that are just common sense, and if someone is impaired at work, you can discipline,” said Rudner. 





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