OTTAWA (July 12, 2002) — The Canadian Human Rights Commission has followed the lead of various provincial human rights decisions that make it discriminatory to pre-employ or randomly test drivers for drugs. But unlike those tribunal decisions, the CHRC has added a provision for cross-border trucking companies who must test drivers in order to comply with U.S. drug testing regulations.

The policy stems from a two-year old Ontario Court of Appeal ruling in the Entrop vs. Imperial Oil human rights case, which ruled random testing was off the books because, unlike alcohol testing, it does not indicate impairment. The Commission also stated that “for trucking businesses that operate exclusively or predominantly between Canada and the US, not being banned from driving in the U.S. may be a bona fide occupational requirement.” However, an individual deemed to be dependant is also considered disabled by the CHRC, and employers have an obligation to accommodate the individual through rehabilitation and counseling, while finding alternative work with similar hours and salary.

“The courts are not expecting that employers create positions the company will not have the ability to sustain. The limit is undo hardship,” says CHRC spokesperson Catherine Barratt. “Those limits are set on a case by case basis.” In other words, says Barratt, a small fleet, whose business is in large part or exclusively cross border, may have legal ground to dismiss a driver if it cannot find the driver alternate work or if that work will cause the company undo hardship.

That test, however, is for the courts to decide, says Christopher Andree, a Brampton, Ont.-based labour lawyer, who first warned carriers of the potential ruling’s pitfalls last year. He says the undo hardship portion of the ruling is a pretty stiff test, and carriers will have to prove the cost of accommodation will alter the nature or effective viability of the business before terminating a drug-dependant driver.

“Every company has more than just drivers. What can potentially happen is you have a driver who was making $1000 a week, and an office clerk making $600. You might have to accommodate him by putting him in the office, and now you have to pay your new office clerk $1000 a week,” he says. “It’s going to affect your profits, but you’ll have tough time showing it’s going to cause you to go bankrupt.”