Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Nervous about random drug testing?

Are you an employer with workers performing safety sensitive activities, but without a drug and alcohol policy and testing regime in place?

Do you work with one or more colleagues who perform safety sensitive activities, and wonder about the safety implications of your employer’s lack of a testing regime?

Are you less than certain about what drug and alcohol testing would mean for your workplace?

When people think about workplace drug and alcohol testing, they often assume this means random testing. The response of many employers to questions about whether to introduce a drug and alcohol testing regime is something along the lines of: “We’re not sure about random testing!”

Contrary to popular belief, workplace testing for drugs and alcohol is not synonymous with random testing. There are many other types of testing that an employer can implement. These include:

  • Pre-employment testing – may be implemented as part of the process of hiring candidates into certain types of positions. A candidate may be asked to attend a test at a certain location before a certain date, as part of the hiring process.
  • Pre-access testing – is similar to pre-employment testing, but for existing workers and contractors. This involves testing prior to accessing the work site(s).
  • Post-incident testing – may be implemented to require anyone involved in certain types of safety incidents, or near misses, to be tested to determine if the presence of drugs or alcohol may have contributed to the event.
  • Reasonable cause testing – may apply when there has not been a safety incident or near miss, but there may be other reasons to suspect the presence of drugs or alcohol.
  • Return to work testing/ last chance testing – may apply for an employee who is returning to work after a substance rehabilitation program, and require the employee to submit to additional testing as a condition to remain employed.

Commonly, an employer’s drug and alcohol policy will incorporate testing in more than one of the above circumstances.

Any type of substance testing regime must be carefully considered. Whether or not a particular type of testing will withstand a legal challenge often depends on a number of factors, including the circumstances of the workplace, the details of the regime, and how it is implemented. It is possible, for example, for a certain type of test to be upheld in one case but not in another.

Knowledge of an employee’s drug or alcohol use, whether obtained through testing or otherwise, may require an employer to take some type of job action towards the employee. Occupational health and safety and other legislation requires employers and certain others to take all reasonable precautions to prevent injuries or safety incidents. Given these obligations, employers may be tempted to immediately terminate someone with a substance issue, without first fully considering the legal issues that arise.

There are several cases in which substance related dismissals have been found to have been wrongful where the employer did not have a drug and alcohol policy in place.

If you are an employer with workers who perform safety sensitive activities, you are well advised to seriously consider having a drug and alcohol testing regime in place. This need not necessarily involve random testing.

So, if you are feeling nervous about random testing, you can breathe a sigh of relief. You do not have to go there. Some employers who start out “small” may at some point consider introducing random testing as part of their testing regime, whereas others may not ever consider it. In the meantime, there are lost of other options to consider!

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