A Legal Balancing Act
Note: An updated version of this article has been posted.
- Alcohol and drug dependence is recognized as being a disability;
- An employer is prohibited from discriminating against a person as a result of a disability;
- An employer is prohibited from discriminating against a person on the basis of a perceived disability;
- In varying degrees, most provincial human rights laws impose a requirement of “reasonable accommodation” for the special needs of an individual who is disabled; and
- An employer may discriminate against employees in certain circumstances where there is a Bona Fide Occupational Requirement (referred to as the “BFOR test”) underlying the discrimination.
While there are additional circumstances where drug and alcohol testing may be lawfully administered to employees, testing remains a highly contentious issue. Consequently, courts and arbitrators continue in their struggle to balance the rights of employees against the legitimate business interests and obligations of employers. As a result, both employers and employees must be mindful of the differing rights and interests and stake, and remain willing to communicate with one another in order to address those interests.
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