Guidelines for Workplace Alcohol and Drug Testing Policies

Transcription

1 Guidelines for Workplace Alcohol and Drug Testing Policies (As of July 22, 2013) Guidelines are not law: These guidelines reflect the Newfoundland and Labrador Human Rights Commission s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 ( the Act ) and various legal decisions from across Canada with respect to drug and alcohol testing in the workplace. They are subject to decisions by Boards of Inquiry and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that this is a rapidly changing area of law, which may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice. Every workplace and fact scenario is unique and employers should seek specific legal advice before creating and implementing drug and alcohol testing policies. Introduction Employers must exercise caution before imposing drug and alcohol testing in the workplace. Although drug and alcohol impairment raises legitimate work safety concerns, drug and alcohol testing policies run the risk of contravening rights protected under the Newfoundland and Labrador Human Rights Act. Employers should prepare and implement drug and alcohol testing policies carefully to ensure compliance with the Human Rights Act. Where employers acknowledge the role of human rights legislation they can prevent conflict and retain valuable employees. This guideline provides a basic outline of the human rights concerns that arise from drug and alcohol testing in the workplace. It should be noted at the outset that it may not be the drug and alcohol testing policies in and of themselves that trigger the Human Rights Act. It can also be the way that these policies are administered and how employees are treated under them. In many instances drug and alcohol testing are implemented for legitimate workplace objectives, and employers certainly have a right to demand quality and safe work performance. It should be noted however, that intent to discriminate is not necessary to trigger human rights protections. An employer could violate the Human Rights Act without actually intending to do so. Generally speaking, drug and alcohol testing should only be used when connected to the fulfillment of essential job duties. 1 When a testing policy is in place employers must be willing and able to accommodate individual circumstances where appropriate. This 1 For example, where there are real safety risks when a person is impaired at work.

2 guideline explains what kinds of policies are generally appropriate and provides examples of possible accommodation. What is the connection between drug and alcohol testing and human rights? Drug and alcohol testing will not contravene the Human Rights Act unless it results in discrimination, as described in the next paragraph. The Human Rights Act does not protect any general right to privacy. Employers have the right to implement and enforce reasonable workplace policies. 2 In certain circumstances this could include drug or alcohol testing. If you have privacy concerns that are unrelated to human rights, you can contact the Newfoundland and Labrador Office of the Information and Privacy Commissioner 3 or consult with a lawyer. Discrimination The Human Rights Act protects individuals from being discriminated against on the basis of what are called prohibited grounds. Discrimination occurs when an employer makes a distinction or imposes differential treatment on the basis of one of the prohibited grounds. 4 For example refusing to hire a person because she is pregnant would be discrimination. 5 One of the prohibited grounds under the Act is disability. 6 Drug and alcohol policies create a risk of discriminating against individuals with a disability. This is because a person with substance abuse problem that reaches the stage of dependency is considered disabled, and is therefore protected under human rights legislation. 7 Protection exists for persons with an actual dependency and for persons with a past or perceived dependency. Discrimination on the grounds of perceived dependency/disability is more difficult to prove and is arguably an unsettled area of law. Disability A drug or alcohol testing policy should not have overly harsh penalties, as this may adversely affect a person with a substance dependency. For example: an employer might 2 For more on employer policies see: Snudmiller v. Dome Petroleum Ltd. (1986), 43 Alta. L.R. (2d) 392, 66 A.R. 390 (C.A.); Byrne v. Newfoundland Transport Ltd. (1984), 48 Nfld. & P.E.I.R. 147 (S.C) Prohibited grounds include: race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, marital status, source of income and political opinion. See: Human Rights Act, S.N.L 2010, c. H-13, s.9(1). 5 This is discrimination on the basis of gender. See: Human Rights Act, S.N.L 2010, c. H-13, s.9 (2). 6 Human Rights Act, S.N.L 2010, c. H-13, s.9 (1). 7 Entrop and Imperial Oil Ltd. (Re), (1996), 27. C.H.R.R. D/210, 24 C.C.E.L. (2d) 122 (Ont. Bd. Inq.), aff d 98 C.L.L.C (Div. Ct.), aff d 189 D.L.R. (4 th ) 14, 37 C.H.R.R. D/481 (Ont. C.A.) at para 89.

3 require all employees to take a drug test to ensure safety on an oil rig. An employee who has a marijuana dependency tests positive. If the employer terminates the person immediately, this could constitute discrimination. After an employee tests positive, it is the employer s duty to discuss the results with the individual and seek further medical and legal assessment to determine if the individual has a disability as a result of a drug or alcohol dependence. If disability is a factor, the employer must then investigate their ability to accommodate the individual to the point of undue hardship. 8 Past Disability: Requiring Disclosure Drug and alcohol policies need not involve actual testing to be discriminatory. Automatically requiring disclosure of addictions could also violate the Human Rights Act. This is because the Act protects against discrimination on the basis of both past and present disabilities. 9 This means that an employer has to be cautious when requesting voluntary disclosure from employees/potential employees. For example, an employer may decide to require new employees to disclose all previous drug addictions. But an employee s past may not be relevant to his or her ability to perform their job in the present. For example, it is likely irrelevant to a sales clerk position that a potential employee had a cocaine addiction twenty years ago. So what is reasonable information for an employer to seek? It depends on the circumstances. The general rule is that where a past addict is at a no higher risk of relapse than the general public, the employer need not know about this past addiction. 10 This means an employer should be careful not to inquire too many years into the past. Employers concerned about past dependencies should seek legal advice to determine what questions are appropriate. Perceived Disability If an employer treats an employee differently because the employer perceives the employee to have a substance abuse problem, this could also be discriminatory. It does not matter if the person does not actually have a problem. For example an employer may believe a potential employee is a drug addict because he lives in a certain area of the city or because of a known past dependency. If an employer treats an employee differently because of this belief, the employer has discriminated. This particular form of discrimination is somewhat controversial as it is difficult to prove. How would an employee know that an employer is assuming he/she has a drug 8 For more on the employer s duty to accommodate, see the section Duty to Accommodate. 9 Newfoundland (Human Rights Comm.) v. Health Care Corp. of St. John s (2003), 46 C.H.R.R. D/63, 2003 NLCA As drug dependencies and relapse rates are specific to the substance and the individual, consultation with experts is advisable.

4 dependency? Courts across the country have taken different approaches as to how much evidence is required. The Newfoundland and Labrador approach is still in development. In Ontario, the case law suggests that the mere existence of a zero tolerance drug or alcohol testing policy is sufficient to establish that an employer perceives all employees who test positive to have a disability. 11 This means that if a recreational drug user tests positive and is terminated under the policy, the court could find prima facie discrimination, even though this person does not actually have a disability. 12 The employee will need not lead any more evidence as to whether the employer perceived substance abuse. Where prima facie discrimination is found, the employer will still have the opportunity to justify the policy as a good faith requirement, but it is more difficult. 13 The Alberta Court of Appeal required more evidence to show prima facie discrimination than the mere existence of a zero tolerance policy. 14 The court stated that where a testing policy allows for wider medical assessment of individuals who test positive, it would be incorrect to assume that a policy that leads to termination is discriminatory. Recreational drug users are not protected under the Alberta Human Rights Act and can justifiably be terminated. Accordingly, under current Alberta case law, so long as a drug testing policy assesses individuals to ensure that persons who require accommodation can receive it, a zero tolerance policy is not discriminatory. A recent decision of a Newfoundland and Labrador Board of Inquiry considered the issue of drug testing. 15 This case involved employment on an offshore oil rig. An employee tested positive for marijuana use. He was tested a second time and tested negative. He was then assessed by medical professionals who determined he did not have a marijuana dependency, and he was terminated in accordance with the policy. He lodged a human rights complaint, and argued that the policy perceived him to have a drug dependency, in line with the Ontario approach. The Newfoundland and Labrador Board of Inquiry found there was no discrimination, because an individual assessment was made and because the company had previously accommodated other individuals who were found to have an actual dependency. The Board of Inquiry also found the policy was not discriminatory and that it did not assume the individual was a drug addict, but rather assumed he might use drugs in the future which could create safety issues in the safety-sensitive workplace See note Prima facie means roughly on its face. An employee must provide enough evidence to establish prima facie discrimination. Once a court finds there is enough evidence to show prima facie discrimination, it is then up to the employer to justify the policy. 13 How an employer can justify a policy is discussed below under Bona Fide Occupational Requirement. 14 Alberta (Human Rights and Citizenship Commission) v. Kellog Brown & Root (Canada) Co. (2007), 60 C.H.R.R. D/307, 2007 ABCA Leonard v. Noble Drilling (Canada) Ltd. (2010), CHRR Doc (N.L. Bd. Inq.). 16 Ibid at para 201.

5 This decision was appealed to the Newfoundland and Labrador Supreme Court where the Board s decision was upheld. 17 The Court stated that in light of the Board s finding that the complainant did not prove he was perceived by the employer to have a disability, and that accordingly there was no prohibited ground of discrimination, the Board of Inquiry had no obligation to conduct further analysis. The Court further stated that in evaluating whether or not there was a perceived disability, the Board was correct in considering evidence presented by both parties about the policy. When is a drug/alcohol testing policy that discriminates reasonable? Bona Fide Occupational Requirement Drug and alcohol policies that are discriminatory on their face (i.e. prima facie ) may still be justifiable under human rights law. If an employee claims that a policy is prima facie discriminatory they will have to prove that, and then an employer will have the opportunity to establish that strict adherence to its drug/alcohol policy is a good faith occupational qualification (in other jurisdictions this is known as a bona fide occupational requirement or BFOR ). This essentially means that the standard imposed is necessary to the employer s operations. If an employer can establish the standard is necessary, the employer will not be found in violation of the Human Rights Act. This means that in order to justify any form of testing policy, drug/alcohol impairment must be related to the essential duties of job performance. What is justifiable will depend on the context of employment and the particular form of substance testing. Drug/alcohol testing has been held to be unjustifiable where it is not related to the safety of workers or the public. 18 The form of testing is also relevant. Post incident testing is more likely to be justifiable than random or pre-employment testing. These distinctions will be discussed in more detail below. According to the Supreme Court of Canada, to be a BFOR (or good faith occupational qualification in NL) a standard must meet three criteria. 19 It must: 1. Achieve a purpose that is rationally connected to the work; Worksite safety 2. Be imposed in good faith. The employer must honestly believe the standard is necessary to achieve this purpose; To show good faith an employer should consider conducting research and consulting with experts and employees before imposing a standard. 3. Be reasonably necessary to achieve this purpose. 17 Leonard v. Human Rights Commission, 2011 NLTD(G) 48 (NLSCTD). 18 See note British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 2 S.C.R. 3.

6 To meet this requirement an employer must go beyond showing the standard is reasonably necessary for most employees. Employer must additionally show that they cannot accommodate a particular individual with drug/alcohol dependency without suffering undue hardship 20 This requirement is the most difficult to establish as the duty to accommodate is onerous. 21 Reasonably necessary means that the standard cannot be: Arbitrary: in that it is not linked or does not further the employer s purpose; Example: A testing policy that only applies to new employees and not existing employees may be arbitrary. 22 Too broad or stricter than necessary to achieve the purpose; Example: A testing policy imposed to ensure safety should only apply to those employees where impairment presents a safety risk. Ex. Administrative staff on a construction site likely would not need to be tested as they do not operate construction equipment. 23 Unnecessary: where other less intrusive means might achieve the same objective. Example: Employers should always consider other options such as enhanced workplace supervision and/or functional job performance testing. Example: If testing is necessary, post-incident testing is less intrusive than random testing. So rigid or inflexible so as not to accommodate individual circumstances. 24 Example: Even if the standard is necessary from all other standpoints, persons with disabilities must be individually accommodated. Wider Medical Assessment A testing/disclosure policy that is part of an overall program which includes medical assessment, monitoring and support for substance abuse is more likely to be acceptable from a human rights perspective than one that is imposed only as a means of determining whether an employee is impaired or likely to be impaired. 20 See note 7 at para See the next section: duty to accommodate. 22 Canadian Civil Liberties Association v. Toronto Dominion Bank (1994), 22 C.H.R.R. D/301, 6 C.C.E.L. (2d) 196 (Can. Trib), quashed 112 F.T.R C.H.R.R. D/373, affd 163 D.L.R. (4 th ) 193, [1998] 4 F.C. 205 (C.A.). 23 See note See note 7 at para 97. For more on accommodation, see the section below duty to accommodate.

7 Alcohol vs. Drug Testing It is important to recognize that this particular issue is an unsettled area of law. It appears that alcohol testing may be easier to justify in the human rights context than drug testing. Some boards/tribunals have noted the less invasive nature of a breathalyzer for alcohol testing versus a urine/blood test for drugs. Another issue that board/tribunals have discussed is that breathalyzers measure present impairment, whereas urine samples measure past use of drugs, and past drug use does not necessarily mean present impairment at work. 25 The exceptions to this of course are the aforementioned Alberta and Newfoundland and Labrador cases. In the Alberta case, a drug test was legitimately linked to workplace performance. This was because the Court found residual effects of past marijuana use could affect workplace performance and safety. 26 In the Newfoundland and Labrador case (upheld by the Supreme Court), the Board of Inquiry held that where an employee is aware of the policy, past drug use as measured in a drug test may justify a conclusion that an employee might use drugs in the future and therefore have drugs in their system while at work. 27 Consider all options As working conditions and safety issues vary dramatically depending on work site and industry, what is justifiable very much depends on the circumstances. Employers should consider what options are available and what would be reasonable in their particular work environment. Duty to Accommodate: One rule does not fit all. Where drug/alcohol testing is deemed necessary in the workplace, the employer is still obligated to accommodate individuals who have disabilities. When the general rule affects a person with a substance dependency that rises to the level of disability, an employer must be flexible. 28 This does not mean the employer must tolerate repeated incidents of unacceptable behaviour, but it does mean that the employer must be understanding and take steps to help the individual before imposing disciplinary measures. When does it arise? The employer s duty to accommodate will also arise when a person with a substance dependency; discloses his or her dependency, fails a test, or refuses to take a test. An employer must take steps to find out if this person has a disability. 29 If the answer 25 See note 7 at para See note Ibid at para Recall that this can include a present, past, or perceived dependency. 29 See note 15.

8 is yes, the employer must then explore and assess all options available to see if there is a way he can accommodate this individual without suffering undue hardship. What is Accommodation? Accommodation means making changes to meet the employee s disability-related needs in the workplace. It may mean temporarily assigning the employee to a position where he or she does not present a safety risk until a wider medical assessment can be completed. It could also mean providing a leave of absence without penalty for the employee to seek medical assessment and rehabilitation. If feasible, it is advisable to have an Employment Assistance Program ( EAP ) in place before an incident arises. EAPs offer access to resources such as counseling and therapy. At minimum, an employer has a duty to investigate the employee s situation and explore available options that may allow the person to continue employment. Employees also have responsibilities. Where an employer presents an option for accommodation, an employee does not have a right to refuse it when it reasonably meets his or her needs. The accommodation need not be the employee s first choice of available options in order to be considered reasonable under human rights legislation. Accommodation is required to be reasonable, not perfect. Accommodation is best served where parties communicate their needs effectively and cooperatively. Compromise is necessary on both sides so that both parties can achieve their objectives. Employees can aid the accommodation process by disclosing their workrelated needs to the appropriate person in the workplace. 30 An employee might also be required to provide medical information as evidence of a dependency, and should also follow the recommendations of health professionals and comply with medical follow up upon return to work. Although disclosure by the employee is certainly helpful, lack of disclosure does not entirely relieve the employer of the duty to accommodate. Employers should keep in mind that one of the symptoms of substance abuse is denial. Employers cannot rely solely on disclosure from the employee. 31 For example, an employer should not generally terminate an employee on the first instance he or she exhibits signs of impairment at work. Discussion is necessary and only after attempts to address the issue where the employee still denies a substance problem, might disciplinary measures be appropriate. Medical assessment, counseling, and testing are all part of an effective policy. 32 Accommodation should not be solely dependent upon an employee s disclosure of a problem Company policy should specify to whom to it would be appropriate to disclose this information. 31 Kemess Mines Ltd. v. International union of Operating Engineers (2006), 264 D.L.R. (4 th ) 495, 2006 BCCA Ibid. 33 Halter v. Ceda-Reactor Ltd. (No. 1) (2005), CHHR Doc (Alta. H.R.P.).

9 Undue Hardship: What is the Extent of the Employer s Duty to Accommodate? Employers are obligated to accommodate persons with disabilities up to the point of undue hardship. Undue hardship is a legal term, the threshold of which will vary depending on the facts of the particular situation. Accommodation to the point of undue hardship means that the employer will be expected to absorb some hardship. An employer will generally not be able to justify refusal to accommodate a person simply because there will be some cost associated with doing so. Undue hardship arises at the point where the extra cost or safety risk is so high that the business cannot reasonably bear it. What constitutes undue hardship is different in every situation. A court or board of inquiry will usually look at a number of factors, including the size of the enterprise, whether restructuring is viable, whether other positions are available, and how accommodation will affect other employees and/or the collective agreement. The key is individual assessment and creativity. If, after a fair assessment of available options, an employee can still not perform the essential duties of her position and there are no other viable positions available, it may be appropriate to terminate. Relapses Employers need not accommodate relapses forever. If an employee continually relapses after rehabilitation, at a certain point accommodation amounts to undue hardship and the employer may be able to legitimately terminate the employee. Courts have held, however, that it may be unreasonable for an employer to terminate a person with a dependency after only one relapse. 34 Some employers choose to institute Last Chance Agreements with employees with a long history of drug/alcohol issues. Such agreements usually stipulate specific terms to which the employee must adhere or face termination. These maybe an option in some circumstances, particularly where the issue is longstanding and has created significant interference in the employment relationship, but in many instances may be inappropriate if the terms are inflexible or overly harsh. Imposing a term of mandatory drug/alcohol testing after an employee returns to work post-rehabilitation may be justifiable in some circumstances, for example where requirements of the job include driving a car. 35 Types of Testing Pre-employment testing Drug/alcohol testing as a mandatory requirement of employment is the most difficult type of testing to justify. It is considered a medical examination and therefore 34 Scheuneman v. Canada (Attorney General) (2000), 266 N.R. 154 (F.C.A.), leave to appeal refused [2001] C.C.C.A. No. 9 (S.C.C.). 35 Jacknife v. Elizabeth Metis Settlement (2002), 45 C.H.R.R. D/241 (Alta. H.R. Comm.).

10 should be limited to assess the ability to perform the essential duties of the job. 36 A mandatory testing policy should be a part of a wider medical assessment. Applicants should be informed of when and where testing will occur, and testing should only occur after a conditional offer of employment is made. Appropriate steps should be taken to accommodate individuals with disabilities. 37 The Alberta Court of Appeal has held that pre-employment drug testing (for a Syncrude plant inspector in Fort McMurray) was reasonable. In that case, the policy was aimed at the actual effects of drug use onsite, which the company was able to prove presented a safety risk. 38 The Canadian Human Rights Tribunal has held that mandatory drug and alcohol testing was reasonable for truck drivers who frequently crossed the border into the United States. It held that performance limitations due to substance abuse could result in significant incident or accident causing fatalities. It was also relevant to this decision that U.S. counterparts had a zero tolerance drug policy. 39 Random Testing As with pre-employment drug testing, random drug/alcohol testing should be limited to where it is integral to safety and related to essential job duties. Tests that measure present impairment (i.e. breathalyzer for alcohol levels) are usually more justifiable than tests which measures historical use (i.e. blood/urine testing for drug use). The Ontario Court of Appeal has held that random breathalyzer testing is justifiable in safety sensitive positions where there is limited supervision. This same judgment noted, however, that random drug testing would not be justifiable because it does not measure impairment, only past use. 40 A recent decision of the Supreme Court of Canada considering only the issue of random testing for alcohol (not drugs), found that an employer cannot unilaterally subject employees to a policy of random alcohol testing, even in dangerous workplaces, unless there is evidence of a general problem with alcohol abuse in the workplace. However, the Court did note that in other cases, random testing in a dangerous workplace may well be justified if it is proportionate in light of both legitimate safety concerns and privacy interests Dawe v. Newfoundland Liquour Corporation (1998). 31 C.H.R.R. D/259, 98 C.L.L.C (Nfld. Bd. Of Inq.). 37 Ontario Human Rights Commission Policy on Drug and Alcohol Testing at 38 See note Milazzo v. Auto Car Connoisseur Inc. (2005), 52 C.H.R.R. D/15 (C.H.R.T.). 40 See note Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Limited, 2013 SCC 34.

11 issue. Newfoundland and Labrador courts do not yet have a set stance on this particular For Cause and Post Incident Testing This refers to drug/alcohol testing that occurs following accidents or reports of dangerous workplace behaviour. These types of testing should also be part of a wider medical assessment. In order to justify its position on this type of testing, the employer should have a policy with precise procedures in place to follow when a worksite accident occurs. The decision to test should be made with regard to the circumstances of the accident/inappropriate behaviour, the worksite, and the employee in question. Employers should also consider whether there is an objective basis for testing. Peer and supervisory reviews are useful tools to determine whether a particular individual s behaviour may be related to drug or alcohol dependency. Where post incident testing is not related to a particular individual s behaviour, an employer should carefully consider whether the safety risk of impairment is objectively high enough to justify blanket testing. 42 Disclosure of past dependencies An employer should be cautious when requiring employees to disclose past dependencies. While disclosure may assist an employer in accommodating present disabilities, past dependency is often irrelevant to present employment. In safety sensitive positions past dependency may be relevant. In this case an employer might consider requiring disclosure of past dependency up to a certain point in time. This point is generally exceeded when the risk of relapse is no greater than the risk that a member of the general population would suffer from a substance abuse problem. In the Entrop case the cut off point was five to six years of successful remission for an alcohol abuse problem and six years of successful remission for a drug abuse problem. 43 It is important not to assign an arbitrary time frame without careful consideration however, as every situation is unique and will depend on the history of the individual, their disability and the workplace. An employer should always consider accommodation where there is disclosure, and should seek legal advice before imposing negative consequences on an employee who discloses a past or present dependency. 42 See note See note 7 at para 121.

12 Pre-employment disclosure An employer should not ask in an employment interview whether a potential employee uses drugs or alcohol, or has ever received psychiatric care. Prior to making an offer of employment it is also inappropriate to ask whether or not the potential employee will need to be accommodated. After a conditional offer of employment is made, and depending on the type of employment, only then may it be appropriate to require disclosure of a drug or alcohol dependency. If the employee discloses a dependency, the employer must then explore accommodation options. Misconduct If an employee engages in some form of misconduct, the employer may have grounds to dismiss on the basis of the behaviour (i.e. dismissal for cause ). The employer should investigate whether the employee is culpable for the behaviour, or if the behaviour was involuntary because of its relationship to a substance abuse problem. An example might be where an employee is impaired during work hours. In this case an employer must take steps to learn whether there is a substance abuse issue (and therefore a disability), and if so, explore accommodation options. If the employer learns through medical assessment that the behaviour was voluntary and not connected to dependency, the employer need not accommodate this behaviour. Sometimes there are both culpable and non-culpable elements to an individual s inappropriate behaviour. An example might be where an employee steals from the employer to support a substance habit. In such cases the employer should seek immediate legal advice before taking disciplinary action. 44 What makes for a successful policy? Communication and Flexibility It is important to be flexible and maintain open lines of communication with employees. Employees should be aware of expectations and employers should be prepared to adapt policies to individual circumstances. Employers should safeguard against automatic termination on a violation of the policy. Individualized assessment is the key. 45 If employees and employers are both aware of their responsibilities, a drug/alcohol testing policy is more likely to be effective. Where possible, a policy should define the difference between recreational drug/alcohol use and a dependency. Employee complaints about a 44 Kootenay Boundary Regional Hospital v. BCNU (Bergen), (2006) 264 D.L.R. (4 th ) 478, 2006 BCCA 57; British Columbia v. BCGEU (2008), 298 D.L.R. (4 th ) 624, 2008 BCCA 357, leave to appeal refused 2009 CarswellBC 221, 395 N.R. 389 (note) (S.C.C.). 45 Alberta Human Rights Commission Drug and alcohol dependencies in Alberta workplaces at

13 testing policy should be considered by the department of the organization that is trained in the area of accommodation of disabilities and/or the employer s legal counsel. 46 Consider Alternatives Drug/alcohol testing may appear to be the only way to combat on the job impairment, but there may be other equally effective ways of doing so. Employers should consider on the job performance tests, supervisory reviews along with encouragement of disclosure (without penalty) and offers of support for persons with dependencies (such as counseling). Handle Testing Professionally Where it has been determined that testing is necessary in a particular workplace, employers should have policies and procedures in place which address how testing will be handled. This should include notifying employees of where, when and why testing is occurring. Testing should be handled by qualified professionals who can safeguard confidentiality and ensure accuracy. Results should be reviewed with the employee, and results should be kept separately from the employee s human resources/personnel file. 47 Relevant Provisions, Newfoundland and Labrador Human Rights Act Definitions s. 2 (c) disability means one or more of the following conditions: i) a degree of physical disability ii) a condition of mental impairment or a developmental disability, iii) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or language, and iv) a mental disorder; Prohibited grounds s.9 (1) For the purpose of this Act, the prohibited grounds of discrimination are race, colour, nationality, ethnic origin, social origin, religious creed, age, disability, disfigurement, sex, sexual orientation, marital status, family status, source of income and political opinion. 46 See note See note 37.

14 (3) Where this Act protects an individual from discrimination on the basis of disability, the protection includes the protection of an individual from discrimination on the basis that he or she a) has a disability; b) is believed to have or have had a disability; or c) has or is believed to have a predisposition to developing a disability. Discrimination in employment s.14 (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination (2) Subsection (1) does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification Human Rights Act, S.N.L 2010.