Random tests on the horizon (Editor’s Notes)

Some employers pushing envelope of drug and alcohol testing for safety-sensitive positions
By Todd Humber
|Canadian HR Reporter|Last Updated: 08/14/2012

Random drug testing of employees is controversial. It’s also complicated in Canada, where the Charter of Rights and Freedoms, human rights legislation and privacy laws intersect to form a complicated roadblock that might make someone question whether an employer going down that road is “on something.”

But employers, citing concerns over safety, security and productivity, are pushing the envelope, perhaps emboldened by practices in the United States where drug testing, while controversial, has been the accepted norm for decades. In 1986, U.S. president Ronald Reagan signed an executive order that made employee drug testing a government-wide policy, and employers are pretty much free to test with impunity.

On this side of the 49th, however, the legislation isn’t that black-and-white — at least not yet. So, employers are taking baby steps on their own. Last fall, the Toronto Transit Commission (TTC) approved random drug and alcohol testing for many employees in the wake of a fatal bus accident. The driver was charged with possession of cannabis.

In 2006, Irving Pulp and Paper adopted a random drug and alcohol testing policy for employees in safety-sensitive positions at a paper mill in New Brunswick. A computer would randomly select names from a list of employees for a breathalyzer test and, in any 12-month period, 10 per cent of the workers on the list would be selected. Anyone who blew over 0.04 per cent blood alcohol level was subject to discipline.

Irving’s union filed a grievance and an arbitrator found the testing unreasonable, citing the fact there had only been five incidents in 15 years and none of the random tests to date had turned up anything.

Irving appealed and the New Brunswick Court of Queen’s Bench overturned the arbitration ruling, saying there didn’t need to be a history of accidents at a dangerous workplace to justify random testing. That argument, it said, would mean Irving would have to wait until something happened before it could take measures to prevent it.

That ruling was appealed and the New Brunswick Court of Appeal upheld it. In April, the Supreme Court of Canada agreed to hear an appeal of the ruling. When that ruling comes down, it could provide much-needed guidance for employers.

In the meantime, employers continue to push ahead. As outlined in one of this issue’s cover stories (“Alberta launching drug, alcohol testing initiative”), drug and alcohol testing is being piloted in Alberta’s energy and construction industries.

It seems irrefutable, at this point, that some form of random drug and alcohol testing for employees in safety-sensitive positions will become entrenched in Canadian workplaces in the near future.

But employers hoping for a blanket green light like the U.S. will be disappointed. The best guess here is random tests will only ever be allowed for employees in safety-sensitive positions. And, since alcohol and drug addiction are disabilities under human rights laws, employers that conduct tests will have to ensure they have excellent resources available to help employees who test positive.

The point of the tests should never be to punish a worker but to ensure a safe working environment for everyone and to give workers battling addiction the help they need.

It’s the Canadian way.

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