Off-duty dilemmas (courts are hesitant to recognize an employer's right to monitor an employee's activities away from the workplace).

• Author: Eisenbraun, Garett

One of the most sensitive issues in the employer-employee relationship is the employer's right to monitor its employees' off-duty conduct. This is not to suggest that employers have carte blanche to control what employees may do in their off-work hours; however in certain circumstances that conduct may negatively impact the employer's business interests, or place persons or property at risk. In those cases, the employer may have a legitimate interest in ensuring that off-duty behavior does not impair the employee's fitness for work.

Most often, this issue arises in the context of an employer's right to conduct substance abuse testing of its employees. As one may anticipate, this issue brings into conflict two fundamental principles: the employee's inherent right to privacy, and the employer's right to control its workplace and ensure its employees are fit for service. Recent Canadian decisions have hi-lighted these conflicting rights.

While no one would condone the unlawful use of narcotics or intoxicants, only a few industries have either the safety or honesty issues that would require testing on a random and regular basis. In Canada, transportation-based industries such as trucking, railroads, and airlines -- where safety issues often predominate -- have some form of drug testing policy in place to cover those concerns. Such policies include not only pre-screening tests, but random testing once the employee is in active service.

The consequences of these policies differ. Whereas employer responses to addictions have traditionally been disciplinary in nature, changes in social mores have resulted in a different perception of such problems. This new thinking arises from the recent acceptance of the principle that alcohol or narcotics addiction is an illness. As an addiction, this behavior qualifies as a disability under human rights legislation.

Human rights statutes universally prohibit discrimination in employment matters on the basis of disability. Judicial awards in this area now generally accept that alcohol or narcotics addiction qualifies as a disability, and therefore an employee so afflicted is entitled to the protection offered under law. Therefore, when an employer wishes to engage in some form of substance abuse testing, it must be cognizant of the limits imposed by human rights legislation.

A fundamental concern of our judiciary relates to the individual's right to privacy. Testing for illegal drugs such as cocaine, marijuana...