Ask The Expert: Is Random Testing Ever Legal?
Is random drug and alcohol testing ever legal? If so, under what circumstances?
Random drug and alcohol testing, or testing without suspicion, is so privacy-invasive that it’s allowed in only 2 narrow situations:
1. Reasonable Safety Measure
The simple fact that the workplace is dangerous and the worker’s job is safety-sensitive isn’t enough to justify a random testing policy. In a 2013 case called Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Supreme Court of Canada clarified that the employer must also prove that there’s an actual problem with drug or alcohol abuse in that particular workplace. That’s a standard that few employers have been able to meet; and even in cases where they did, courts still found that the policy’s privacy harms outweighed its safety benefits.
2. Post-Rehab Testing
Random testing of a particular worker, as opposed to a general testing policy covering a group of workers, may be justifiable as part of a last chance agreement for a worker that has previously tested positive. The way it typically works: Instead of termination, the worker agrees to complete rehab and submit to random testing for a specific number of weeks. The worker can then return to work as long as he/she tests clean during the post-rehab period.