Drug testing in selection: Legal, ethical, and privacy issues

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Drug testing in selection Legal,
ethical, and privacy issues

• By Kim Moore

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Agenda

• Definitions
• Benefits and drawbacks
• Ethical privacy issues
• Legal requirements for selection
• Case examples
• Comparison with United States
• Conclusions

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Definitions Scope

• Selection the choice of job candidates from a
  previously generated applicant pool, meeting
  management goals and legal requirements
• Drug Abuse Testing assessing applicants and
  employees for illegitimate usage of illegal
  narcotics

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Benefits of Drug Testing

• Drug-free workplace provides good reputation
• Attempt to reduce hiring of drug abusers
• Deviant behaviours/ poor relations
• Higher absenteeism/ turnover rates
• Higher accident rates
• Poor performance

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Problems with Drug Testing in Selection

• Limitations of current testing methods
• Decrease labour-management relations
• Perceived unfairness/ low face validity
• Complement industry to cheat tests
• Lower cost but least effective form of testing
• Internal characteristics vs. specific behaviour
• Legal requirements for drug testing

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Ethical and Privacy Issues

• Validity
• Drug tests do not show current level of
  impairment, or when drug entered the system
• Reliability
• False positives are possible
• Contamination of sample
• Should an employer dictate what an employee does
  outside the job?

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Canadian Legal Requirements

• Canadian Human Rights Act
• Prohibits discrimination on basis of disability
• Allowable if proven BFOR
• Random testing of employees in safety-sensitive
  job
• Testing for reasonable cause or post-accident
• Random testing following disclosure of current
  workplace drug dependency
• Mandatory disclosure past or present dependency

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Canadian Legal Requirements

• Not acceptable forms of testing
• Pre-employment drug testing
• Pre-employment alcohol testing
• Random drug testing
• Random alcohol testing (in non-safety-sensitive)
• Reasonable Accommodation

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Canadian Case Law

• Entrop v. Imperial Oil (Ontario Court of Appeal
  2000)
• Safety-sensitive employees randomly tested also
  included pre-employment testing
• Failure of test immediate dismissal
• Testing does not prove current impairment
• Toronto-Dominion Bank (Federal Appeals Court
  1998)
• All new/returning employees must take drug test
• Court ruled indefensible as BFOR

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Comparison with the US

• Canada
• Illegal in pre-selection
• 15 have drug policy
• Employees less accepting
• 34 unionized

• United States
• 61 screen job candidates
• 75 have drug policy
• Employees more accepting
• 15 unionized

• Focus on the United States
• Costs 75-100 billion annually
• 1988 Drug Free Workplace Act (Federal
  contractors and grantees)
• Government supports private sector drug testing

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Comparison with the US

• ADA Employment Regulations
• qualified individual with a disability shall
  not
• include any employee or applicant who is
• currently engaging in the illegal use of drugs
• a test to determine the illegal use of drugs
  shall
• not be considered a medical examination
• therefore pre-employment drug testing,
• testing after a conditional offer, and random
• drug testing are all possible

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Conclusions

• Strict legislation limits the effectiveness and
  reach of drug testing in Canada, especially in
  the selection process
• Current testing methods impose on an individuals
  privacy not that effective

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Questions?

• Thank you