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between the employer’s right and obligation
to take reasonably necessary steps to
maintain a safe workplace and the individual’s
right to privacy.
Pre-employment
screening
In one sense, this is the easiest situation to
address. When a company is looking to hire
a new employee, a job offer may be conditional
on certain factors, such as proof of
a particular certification or trade, that the
potential employee holds a specific licence
to operate heavy machinery or a clean drug
test. At that stage, the potential hire has the
choice whether to participate in the drug
test, but knows that refusal to do so will result
in the job offer being revoked. There is
no employment relationship between the
parties and arguably no damages could result
if the job offer is revoked, either for a
failure to submit to testing or because the
test showed some level of THC, resulting in
a failed test.
However, from the perspective of human
rights law, pre-employment screening has
the potential to result in a complaint to the
Saskatchewan Human Rights Commission
(SHRC). If an individual tests positive for
a drug and the employment offer is subsequently
revoked, this could result in a complaint
of either real or perceived disability.
Discrimination on the ground of disability
in employment is contrary to the SHRC and
“disability” has been held to include perceived
disability. Even at the hiring stage
the duty to accommodate can apply.
Pre-access screening –
non-unionized
This is a common practice in construction,
especially in safety-sensitive worksites or
projects. In this situation, the general contractor
or owner requires the employees of
its sub-contractor or trades to participate
in mandatory drug and alcohol testing prior
to gaining access to the job site. Any employee
who refuses or who takes the test
and fails is refused access to the site and
therefore cannot work on that particular
project or contract.
Yet a “positive” test for THC does not
indicate current impairment, nor does it
prove that the employee is more likely to
be impaired at the workplace in the future.
From an employment law perspective, once
LEGAL MATTERS
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thinkbigmagazine.ca | Quarter 3 2018 | Think BIG 53
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