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Drug Testing Issues in the United States and Canada

  • By: Andrew Easler, Esq.
  • Published: Sep, 27 2014
  • Updated: Dec, 20 2022

Ever since 1996, Canadian truck drivers have accepted random alcohol and drug testing as something they’re simply going to have to do if they plan to do cross-border trucking. US drivers have been subject to random testing ever since the latter part of the 1980s. Every year, ten percent of any given carrier’s drivers are singled out for random Breathalyzer testing, and half are required to submit to drug testing. This is also the case for US drivers who work for Canadian Carriers. Further, the Department of Transportation tests pilots, ship captains, and other transportation workers in “safety-sensitive” jobs.

Invasive? Yes, But…

Ever since the DOT began random testing, critics slammed it as being invasive. Alcohol testing, they argued, had an established level of impairment. Drug testing didn’t, and therefore was seen by some as a lifestyle judgment. In fact, the policy was challenged as being a Fourth Amendment violation, but in 1989, the US Supreme Court ruled by a slim 5-4 decision that although random drug testing was inherently invasive, Fourth Amendment rights had to give way to public safety.

The Problem North of the Border

Suspicionless testing where Canadian drivers were concerned became a problem – in Canada, human rights issues are given more weight than they are in the United States. In Canada, moreover, addiction is considered to be a disability, and therefore it becomes more difficult for employers to refuse to accommodate employees who have problems with drugs and/or alcohol. In fact, in 2000, the Ontario Court of Appeals ruled against an oil company’s drug-testing program, because the company failed to prove that there was a link between impairment and a worker’s ability to perform a job (Entrop Imperial Oil). The appeals court did, however, allow random drug and alcohol testing in certain circumstances – post-accident and return to duty, and reasonable cause – and agreed that companies could require drug testing as a pre-employment condition for applicants to “safety-sensitive” positions.

The position of the Ontario Human Rights commission is that random drug testing is intrusive, since drug tests don’t specifically measure drug testing.

Who’s Testing?

In the United States, drug testing is considerably more established than it is in Canada. Statistics from 2011 reveal that 57% of businesses, even those that are not required to be compliant under DOT regulations, are requiring pre-employment drug screens, and state legislators are increasingly advocating for, and in some cases achieving, drug testing for people who are receiving or applying for welfare benefits. Drug testing, in short, is becoming big business. Labs, collection sites, doctors and other practitioners are now scanning for a wide variety of illicit substances and also for misuse of prescription drugs. Technicians are increasingly in demand, and that demand is not likely to abate any time soon.

So, will Canada ever achieve the level of compliance that’s now required in the United States? It’s a bone of contention, but many experts believe that Canada will eventually fall in line with US practices.

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