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Looking at Employee Testing

Employee drug and alcohol testing is broken down into the different types of tests that employers may want to perform. There are five general categories:

  1. Pre-employment or pre-access testing.
  2. Reasonable cause testing
  3. Post-incident testing
  4. Random testing
  5. Testing as a part of a return-to-work protocol

Pre-Employment/Pre-Access Testing

Pre-employment or pre-access testing was first proposed in Alberta. Employers in especially safety conscious jobs in the construction industry wanted to test their employees prior to hiring or after hiring but before beginning work at the job site.

This type of testing helps prevent the hiring of individuals who may be a safety threat to themselves and others in a safety-sensitive workplace. Applicants may undergo a drug test after being given a conditional offer of employment. Testing is administered at a medical clinic and any positives are re-tested and confirmed and to ensure court-worthy reliability.

Reasonable Cause Testing

Reasonable cause testing is also referred to as reasonable suspicion testing. This takes places when an employer has some cause to suspect an employee is impaired as a result of drug or alcohol use. For instance. If an employee is slurring his/her words, has an uneven gait, or is being belligerent towards others, an employer may have a good reason to implement testing.

Post-Incident/Post Accident Testing

This type of testing provides data to use as a tool in analysis of the causes of workplace incidents. Testing should be done as quickly as possible post-incident. Alcohol testing should be performed within eight hours, while drug testing should be performed within thirty-two hours of the incident.

Random Testing

As the name suggests, random testing uses a predetermined percentage of the total workforce as an ongoing deterrent to drug and alcohol use in the workplace. Often, employers will use an independent third-party to ensure anonymity in this procedure.

Return-to-Work Protocol

This form of testing is usually a part of a last chance agreement, in which an employee has confessed to having used drugs or alcohol, but the employer has chosen to give him/her a second chance. Usually, this last chance agreement includes some form of random testing in order to ensure that the employee is holding up his/her end of the bargain.

Testing Methods

There are currently three types of testing being used in today’s workplace:

  1. Breathalyzer Testing – This is probably the oldest form of testing for alcohol in an individual’s system. It is generally accepted that a Breathalyzer test will be able to determine current alcohol-related impairment, but it is ineffectual when testing for drug impairment.
  2. Urine Analysis – This is typically used to determine if drugs are in an individual’s system. It is not an indicator of current impairment.
  3. Saliva Swab – This is the most recently-implemented form of testing. The medical community is somewhat divided on this, though some maintain that the saliva swab can measure current impairment. The downside is that it takes some time to receive the results of this test.

Case Law

There’s a bit of struggle on employee drug/alcohol testing, as is to be expected. Within the Canadian context, employers insist they have the right to institute drug or alcohol tests, while the courts have swayed between employer and employee rights in these situations.

One line of reasoning suggests there is a stark divide in Canada. An east/west divide seems to reflect the conflict in case law. Historically, the Alberta Courts have been more sympathetic to an employer’s right to carry out drug and alcohol tests, while the Ontario Courts and Labor Board are less inclined to support the employer.

Most of the case law deals with safety-sensitive positions, whether in the construction industry or within a plant with safety-sensitive areas. It is likely that the more safety-sensitive the job is, the more likely a court or an arbitrator will give them some leeway for drug and alcohol testing, provided that there is some evidence of a problem that must be addressed.

Summary

This article breaks down the different forms of employee drug and alcohol testing: 1) Pre-employment or pre-access testing; 2) Reasonable cause testing; 3) Post-incident testing; 4) Random testing; and 5) Testing as a part of a return-to-work protocol. The article also introduces the three common methods of testing, and some trends in Canadian case law.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US), a privacy professional should be comfortable with topics related to this post, including:

  • Workplace privacy concepts (IV.A.a.)
  • Drug and alcohol testing (IV.B.a.ii.3.)
  • Investigation of employee misconduct (IV.B.c.)

 

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1 comment to Looking at Employee Testing

  • Pemutih wajah yang aman

    Thank you for sharing excellent informations. Your web-site is very cool. I am impressed by the details that you have on this web site. It reveals how nicely you perceive this subject.

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