‘One size fits all’ follow-up testing no good: Arbitrator

Employer’s follow-up testing for employees returning to work after testing positive for drugs or alcohol was reasonable but must allow for individualized treatment
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 07/06/2016

An Ontario employer’s drug policy that specified random follow-up testing for employees returning to work after impairment at work was reasonable, but needed to be clarified so not all such employees were treated the same, an arbitrator has ruled.

The employer had a drug and alcohol policy that was intended to provide a safe workplace for employees and anyone else affected by its employees. The policy allowed employees who had tested positive for drugs or alcohol to return to work with follow-up tests. Once an employee who had previously tested positive obtained a negative test result, she was required to comply with unannounced and random follow-up testing. This involved “at least six tests in the first 12 months following the employee’s return to the workplace,” said the policy. The policy also stipulated that “a substance abuse professional (SAP) can terminate the requirement for the follow-up testing at any time, if the SAP determines that the testing is no longer necessary.”

Under the drug and alcohol policy, employees who refused to take a test were treated the same as employees who tested positive, which meant they were subject to the return-to-work protocol that involved visits with an SAP and follow-up testing.