Blood Test: Legal in Canada?

January 10, 2008 10:26 PM

In Canada is it legal to require a blood test for (A) employment; (B) group insurance eligibility?

And for that matter, is the group insurer allowed to ask all those questions about my health history? Pisses me off that they'll probably exclude me from the plan because I'm on anti-depressants.

posted by five fresh fish to law & government (15 answers total)

Under the Canadian Human Rights Act, you cannot be discriminated against because of a mental disability.

Pre-employment drug testing is not legal as per the Human Rights Act. But a physical, including a blood test, can be legal if it is a bona fide requirement of the job. For many jobs, it may not be. If you're operating heavy machinery or working as a firefighter, my gut tells me that a thorough physical is a bona fide need. If you're in an office, no way.

IANAL. I'm just a person with an interest in law.

Keep in mind that if you kick up a fuss you could just be terminated without cause. And while on your probationary period, without notice or severance. A company with a wily HR department will not discuss the issue, leaving you with no evidence that you were dismissed because of your tests.
posted by ten pounds of inedita at 2:08 AM on January 11, 2008

IANAL, but I have taken HR courses on this subject. The Canadian Human Rights Act applies only in areas of federal jurisdiction (federal gov't, banking, transportation, and some other things). Depending on what industry you're employed/seeking employment in, you may well be in provincial jurisdiction and should probably refer instead to your province's human rights code and/or employment standards law rather than any federal statute.
posted by onshi at 4:08 AM on January 11, 2008

OK. FFF is in BC. The BC Human Rights Code also prohibits employment discrimination based on mental or physical disability (13.1.b). So whether or not it's legal to require a blood test, they can't refuse to hire you based on the results.

The BC Human Rights Code in cases like this appears to use the "Meiorin Test", that is: (a) was the policy adopted to address a purpose rationally connected with the job function? (b) was the policy adopted in good faith, in the genuine belief that it was needed to accomplish the stated purposes? and (c) could the purpose have been accomplished by some other means, whereby the employee could be accommodated without undue hardship?

For your average joe office job, I don't see that a blood test would pass the Meorin Test. But, again, IANAL. There are many good legal firms out there who can help you, and initial consultations are typically free.
posted by ten pounds of inedita at 4:41 AM on January 11, 2008

You should also read this about pre-employment medical testing. And the author has contact info at the bottom of the article.
posted by ten pounds of inedita at 4:45 AM on January 11, 2008

In the US here, but...
In my experience, blood test are primarily required for drug screening.
posted by Thorzdad at 5:51 AM on January 11, 2008

Thorzdad, FFF is in Canada. Drug screening is practically unheard of in Canada and there have been many Charter cases protecting the rights of employees and inmates against invasive testing. American experience has no bearing here and does not answer the question.

FFF I've been looking through canlii.org case law for you and I have only found cases that reinforce eveyone's right to employment free from discrimination based on mental disability or depression. I couldn't find any case law about excludes employees from a group insurance plan based on a pre-existing condition. Here in Ontario I have used half a dozen different companies for my benefits and have never been excluded because of my or my husband's pre-existing health. Anti-depressants seem like such a minor thing to exclude you over. I guess this job isn't unionised? If it were, you could certainly call the union and they would be happy to help you. Actually, the law teams of unions such a CUPE are pretty good, maybe give them a call anyways and see what their experience has been in similar situations.

I hope everything works out for you!
posted by saucysault at 6:54 AM on January 11, 2008 [1 favorite]

In Canada, but a US employer who has previously shown little to no understanding that things in Canada do not work the same as down in the USA. Pisses me off to no end.

I don't think the questions about health are intended to discriminate against employment: they're for the group health insurance plan. This may be standard insurance industry bullshit.

Also, I'm at least six months into this job, long past probation, etc.

The blood test, though, seems unnecessary, invasive, and quite probably illegal on all counts. I do not see how the insurance policy can justify it, and I know sure as hell the employer has absolutely no right to test my blood.

What really gets my goat is that I really like this job. I want to keep it. But if I don't refuse to cooperate, I'm only helping creeping Americanism to infiltrate Canadian worksites. Grrr. Catch-22.
posted by five fresh fish at 7:49 AM on January 11, 2008

I doubt the blood tests are required as part of a pre-employment screen. This looks like an insurance issue.
posted by Umhlangan at 7:51 AM on January 11, 2008

I've never heard or or been required to be screen for group health plans, and I've been on numerous.
posted by loiseau at 9:54 AM on January 11, 2008

I'd call the ministry of labour in your province and talk to them about the blood test and employment. I don't know who to contact about the group insurance one, but it seems dodgy to me. I imagine you've done some googling... I couldn't really find out anything pertaining to Canada. I've only been part of two group insurance plans and neither tested my blood, FWIW.
posted by glip at 4:20 PM on January 11, 2008

If it's for employment I'll tell them to shove it up their asses. I'll contract to them instead of being employed, no skin off my ass.

But at the same time, I'm suspicious about them claiming "it's for the group benefits plan!" when I deny them my blood.

The whole thing smells to me.
posted by five fresh fish at 5:49 PM on January 11, 2008

I've never had to fill out a health history or get blood testing for group benefits in Ontario. But when I applied for private insurance that included drug coverage, health history was required by all three different providers, while a blood test/physical checkup was required by two of them. If you're thinking of going on contract instead of being employed, you're very likely to undergo at least as invasive testing and questioning if you apply for personal coverage, and you are going to be seriously dinged for any pre-existing condition. You may be able to get private insurance, but expect your anti-depressants to be excluded.

So I'd agree that you should throughly investigate if they can legally request such testing, but I wouldn't advise going contract over this one issue, because you're guaranteed not to be covered for any pre-existing condition under a personal plan, which really sucks.
posted by maudlin at 8:50 AM on January 12, 2008

Bah, humbug.

I hate being screwed over.
posted by five fresh fish at 6:14 PM on January 12, 2008

My decision is this:

I'll fill in all the group benefit forms. I'm quite sure that it is standard procedure. I will delay the blood test by telling them I'm consulting a lawyer. I'll find out whether this is for the group benefit health insurance component, or if it is some bullshit employer requirement.

I will then be contacting a few of you in MeMail, who've offered a hand in determining the legalities, and then I'll follow up this thread.

This assumes they get around to asking for the blood test. Given how freakin' slow they were to get me to sign the NDA, I may dodge this just by not doing anything.
posted by five fresh fish at 9:12 AM on January 13, 2008

Well, crap in a baggie, I've been denied LTD should I have a depressive episode. Had to fill in a medical history form. Need to call 'em up , see if this means I'm denied reimbursement on my antidepressant.

Still no blood tests. If this glacial pace is typical of their process, not only might I never have to give blood, I might never receive reimbursement for a health expense. Lordy.
posted by five fresh fish at 10:54 AM on March 29, 2008