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Canadian Human Rights Tribunal Upholds Pre-Employment and Random Drug Tests of Bus Drivers
January 26, 2004

After hearing extensive expert evidence on drug testing generally, and on the work environment in particular, the Tribunal concluded that the testing policy was a bona fide occupational requirement. However, although the employer’s right to administer random drug tests was upheld, the Tribunal also ordered the employer to discontinue its policy of summarily dismissing employees and refusing to employ applicants who tested positive. Instead, the employer was ordered to accommodate employees and applicants to the point of undue hardship where it was established that the individual was suffering from an addiction disability.

The Tribunal observed that if an employee or applicant is able to establish that he or she suffers from a disability, then the employer has a duty to accommodate the employee or applicant to the point of undue hardship. However, if the employee or applicant is unable to establish that he or she has an addiction disability, the duty to accommodate may not arise. For example, a positive drug test could result from an employee using drugs voluntarily, as a matter of personal choice, rather than because the employee is suffering from a drug-related addiction. In the absence of evidence establishing a disability, the duty to accommodate does not arise and the employer may be able to terminate the employment relationship without violating the Canadian Human Rights Act.

Milazzo v. Autocar Connaisseur Inc., 2003 CHRT 37, November 6, 2003