Thanks to Jeff Polsky for answering my question about minimizing the risk of a runaway jury in US employment claims. Those are important tips for employers in the US, and for employers in Canada whether or not we see more jury trials in employment cases.
Another apparent distinction between US and Canadian employment law is drug testing. Restrictions on drug testing in Canada are a continuing source of frustration, especially for US employers with operations in Canada.
Drug and alcohol testing in Canada has typically been restricted to reasonable cause, post-incident or return to work from rehabilitation scenarios. Pre-employment and random testing have been prohibited almost universally.
Another important restriction flows from the limited ability of drug testing to identify present impairment – obviously a problem in the workplace – and past use, which may have occurred on the employee’s own time and which may no longer be affecting the employee at work.
These restrictions have been seen as a key difference between US and Canadian employment law, and have led to some challenges for employers who operate in both of our closely integrated economies. But it may be that Canada is moving a little closer to the US as some of the blanket prohibitions are giving way to more nuanced approaches in the right circumstances.
Our courts and arbitrators are paying more attention to safety sensitive workplaces and showing a preference for prevention over response to an actual accident. (The Irving Pulp & Paper case is a good example – see in particular paras. 51 -57.) At the same time, unions and industry are beginning to develop comprehensive protocols that combine careful attention to privacy, human rights and treatment for substance dependence with some pre-employment/pre-site access and random testing. (See this comment on a recent initiative in Alberta and the program developed in the Construction Industry in British Columbia.)
We also expect more movement as better forms of drug testing are developed so that present impairment can be identified.
Any substance testing in Canada will have to be carefully considered, but these are hopeful developments in striking a better balance between individual privacy and human rights and the needs and safety concerns of industry and other workers.
We suspect there are useful lessons for us from the US experience and look to Jeff Polsky again for his insights.