Post Hiring Background Review and Tests²⁹

Due to Human Rights Legislation that protects prospective employees from discrimination on the basis of disability and record of offence, background reviews related to the candidate’s medical condition and criminal record should be undertaken, if at all, only after a conditional offer of employment has been made to the candidate. The logic for conducting these two reviews only after a conditional offer of employment is made is to protect the company from possible allegations of discrimination, on the basis of disability or record of offence, by candidates who are unsuccessful through the selection stage of the process. Thus, by not collecting information on the candidate’s medical situation or record of offences prior to making a conditional offer of employment, the company should avoid any misapprehension of discrimination.

As with any test or review that the company does before a conditional offer of employment has been made, i.e. in the selection stage of the process, there must be a bona fide occupational requirement for the test or review that is proposed to be done after a conditional offer of employment has been made.

Medical Tests and Examinations

The appropriate medical tests for bus operators will be based upon the Standards. For example, it is appropriate for candidates for an intercity operator position to be asked to perform a strength test and undergo a back functionality examination based upon ability 21.02.05 of the Standards - ability to lift freight as per the organization’s guidelines, once a conditional offer of employment has been made. Therefore, the National Occupational Standards has to be reviewed to determine which of the abilities contained in it require a medical examination or test to determine whether the candidate can perform the task. This review of the Standards should be undertaken by a trained occupational health professional to determine the appropriate tests.

If through medical testing it is determined the employee has a medical condition that will not allow him/her to carry out an important task, the question has to be asked as to whether the candidate’s condition can be accommodated. Human Rights Legislation in Canada requires that prospective candidates, whose medical conditions preclude them from performing the essential duties of a job, be accommodated to the point of undue hardship. The standard of undue hardship considers the cost of required accommodations and any health and safety concerns that may be involved. For instance, if it is determined that a candidate cannot lift freight over and above a certain weight, the company may be required to accommodate the driver by placing the driver on routes that do not involve lifting. Or the company may be required to purchase and install devices that would facilitate the lifting requirements of the job, but only if the accommodation does not cause undue hardship on the company.

Drug and Alcohol Testing

Drug and alcohol testing in Canada is extremely controversial, as it has been determined that drug and alcohol tests do not measure with any sort of precision a candidate’s impairment and therefore cannot be used to judge the ability of an individual to perform the job. Subject to limited exceptions for safety, sensitive positions or after significant accidents or near misses, a blanket rule for drug and alcohol tests as a condition of employment will usually constitute a prima facie case of discrimination. However, drug and alcohol testing may be permissible for jobs where safety is of fundamental importance, provided no other feasible method to assure employees are not impaired or otherwise incapacitated on the job. Before requiring/insisting on a drug or alcohol test, the employer will have to determine that the test is reasonably necessary to assure the safe, efficient, and economic performance of the work, and is rationally connected to the job. Testing may not be acceptable if the individual occupying the job has regular contact with co-workers or supervisors during the course of performing his/her job duties, even if the contact is not continuous. Employees who test positive must be accommodated to the point of undue hardship.

References

• Federal, provincial and territorial Human Rights
   Commissions, Boards and Tribunals
• Federal, provincial and territorial Labour Relations
   Acts and Employment Standards
• Collective Agreements
• Legal Counsel

Drug, alcohol or other medical examinations to determine an individual’s ability to perform the essential duties of a job should only be administered after a conditional offer of employment.

In order to protect confidentiality of test results, all health assessment information should remain exclusively with the examining physician and away from the employee’s personnel file.

Criminal Record Checks

Criminal Reference Check – Who Do I Call?

The best source of information on how to conduct a criminal record check is your local police department. Normally, reference checks can be initiated by either the company or the candidate. If they are candidate-initiated, the police department conducts a Canada-wide search and issues a letter or clearance certificate to the individual that can then be presented to the company. Company-initiated reference checks are normally done in the case of “vulnerable” occupations - such as bus operators. Consent is needed from the candidate before police will conduct this kind of check. It should be expected that the police department will charge for this service. As well, turnaround times can be in the order of several weeks in large urban areas.

Criminal record checks are performed for risk management reasons and not for selection purposes. Under Human Rights Legislation in several provinces in Canada, it is prohibited to discriminate against a candidate on the basis of his/her record of offence³⁰. Clearly, the fact that an individual has been convicted of certain kinds of crimes in the past (e.g. theft, driving while impaired, assault, child molestation) is going to be of interest to the company and the employee’s supervisor.

²⁹ In the previous discussion on Selection, it was identified that the application form should include a disclaimer putting the candidate “on notice” that certain tests are part of the final hiring process. This notice can also be reinforced after the interview stage if a “next steps” document is used. The value of giving notice is that it allows individuals who may not want to undergo this kind of test to “self-select” themselves out of the process. Research has shown that such tests are viewed by a majority of candidates as an “invasion of privacy,” but that if, given adequate prior notice, these privacy concerns diminish substantially.

³⁰ Under Human Rights Legislation, individuals are only protected with respect to crimes for which they have been pardoned and violations of provincial laws, e.g. Highway Traffic Acts. Note, however, that individuals with active criminal records who have not received a pardon for their crime(s) are not protected from discrimination under Canadian Human Rights laws.