While American corporations have made it clear where they stand on drug testing, corporate Canada is still mulling over what position to take on the issue.
Currently, there is no specific legislation on drug testing in Canada. In the United States, it’s common practice for employers to randomly select workers for drug and alcohol screening. So, many American-based companies with divisions in Canada are being pressured to implement similar policies, which has moved the controversial topic to the top of many business agendas.
“There’s a difference between Canadian tradition and American law. The Canadian courts have said (drug testing is) not appropriate (in the workplace),” said Rick Drennar, prevention education consultant for Addictions Foundation Manitoba.
Confusion over the permissibility of drug testing has prompted the Canadian Human Rights Commission (CHRC) to review its policy based on recent decisions handed down by the courts. The commission explained in its 2001 annual report that it wants to primarily focus on the human rights implications of “what has been irreverently called ‘urinary surveillance’.” Submissions for proposed policy changes made by employers, unions and government agencies will be reviewed. A revised policy should be out by the summer.
“Employers want some clarification and the new policy will provide them with that,” said John Hucker, the CHRC’s secretary general.
A landmark ruling two years ago is seen as the precedent-setting case guiding workplace practices today. The CHRC will be sure to consider this case in its review.
Exxon Corporation, the parent company of Imperial Oil (Esso), recommended that Esso impose drug and alcohol testing for all employees at two Ontario factories. The policy was implemented in 1992 and was similar to that of Exxon’s. Not long after, Esso ended up in court defending the policy.
Martin Entrop, a control board operator in Sarnia, Ont., told his superiors — under company policy — that he had a drinking problem in the early ’80s, though he had not had a drink for several years. Based on this information, Esso removed him from his current position, a job considered safety-sensitive, and placed him in a less “desirable” job with the same rate of pay. Entrop filed a complaint with the Ontario Human Rights Commission (OHRC), which ruled in Entrop’s favour concluding that the company’s drug and alcohol policy was illegal. The Ontario Court of Appeal upheld this decision.
Even though alcohol testing for people in safety-sensitive positions is permitted because it indicates the actual impairment of a worker, in the case of Entrop, Esso breached the Ontario Human Rights Code, the Court said. Alcohol or drug addiction is considered a handicap and the company discriminated against its employee based on this handicap. Not to mention Entrop suffered “mental anguish” over the incident unnecessarily, according to the OHRC.
The Court did not have the jurisdiction to make a decision on drug testing; nevertheless it addressed the issue, stating alcohol testing (a breathalyzer test) could be justified on the premise it measures actual impairment. But drug testing is unjustified since it only indicates the presence of drugs in the system and says nothing about how the drug impairs performance.
“We don’t like the use of the drug tests because they don’t measure the person’s ability to do the job,” said Hucker. “Based on the scientific evidence, drug testing doesn’t measure impairment.”
With alcohol screening an employer can tell what the impact will be on performance right away, it just can’t be done with drug testing, he said.
Currently, drug testing is permissible only if it involves a safety sensitive position. For example, a construction worker operating heavy machinery in a public place might fall under this category. Both the Court and commission agree safety should be the number one priority, and the “unwritten” rules may be broken for such circumstances.
“We’re not opposed to testing in every situation if there is just cause,” Hucker said.
Drug testing “for cause” or “post accident,” on certification for safety sensitive positions and post reinstatement, may be permissible if “necessary as one facet of a larger process of assessment of drug abuse,” said the CHRC in its consultation paper, referring to the Entrop court decision. There was no elaboration made as to what this process of assessment would require.
Unless or until the Supreme Court of Canada delivers a ruling making drug testing either legal or illegal, employers are left to their own devices. Several companies are jumping on the U.S. drug testing bandwagon, or at least trying to, such as the case with Toronto Dominion Bank. Two years ago, TD Bank required all new hires to take a drug test after an offer of employment. The Federal Court of Appeal rejected TD’s efforts finding there was no occupational requirement for the drug tests, and the policy constituted indirect discrimination.
“Their (TD Bank) argument was that American banks were doing this because some employees down there who had drug problems stole money from the bank to pay for their drug deeds and therefore if it’s happening in the States then it may happen up here,” said Hucker. “It’s true the American influence is a factor, but we have to establish there’s a Canadian dimension to it and they can’t transpose U.S. laws and standards here.”
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