The issue of mandatory random drug testing has come to the forefront in the investigation of the Queen of the North ferry disaster in British Columbia.
On March 21, 2006, the ferry was taking vehicles and passengers from Prince Rupert, B.C., to Port Hardy, B.C. Shortly after midnight, the boat struck an island after a normal course correction on the route wasn’t made. Fifty-seven passengers and 42 crew members abandoned the ferry and it sank soon after. Two passengers were killed.
Following BC Ferries’ own inquiry that determined the sinking was mainly the result of “human factors,” the Transportation Safety Board of Canada (TSB) released a communiqué last month. The TSB said its own investigation into the incident revealed several crew members of the doomed ferry smoked marijuana between shifts. This took place both on- and off-board the ship.
The TSB said there was no evidence crew members on duty at the time of the collision were impaired, but noted studies have proven regular use of the drug can cause “significant impairment on a wide range of human performance characteristics.” Studies have also shown impairment from a single use of marijuana can last 24 hours.
Crew members of the Queen of the North live on board the ship for days at a time and BC Ferries has a zero-tolerance policy on possession or use of alcohol and drugs while serving on board, whether on-duty or off-duty. This is to ensure employees are ready and alert in case of an emergency.
However, the TSB found the senior crew members on the Queen of the North didn’t take sufficient action to ensure the zero-tolerance policy was strictly enforced. It also found the crew members who smoked marijuana weren’t fully aware the effects can last for 24 hours, which could affect their next shift or emergency duties.
Although there was no direct proof any crew member was impaired on the night of the sinking, the TSB was very concerned employees performing duties critical to public safety were potentially impaired.
“Ferry crews whose performance is impaired by cannabis are a clear risk to the travelling public,” Wendy Tadros, chair of the TSB, said in the communiqué. “Any impairment of employees who perform safety-critical tasks in the transportation industry is a clear risk to safety.”
The TSB recommended BC Ferries take measures to ensure the safe operation of its vessels and review the effectiveness of its drug and alcohol policy.
BC Ferries president and chief executive officer David Hahn responded to the communiqué with a statement saying the company’s zero-tolerance policy had been communicated in several ways to all employees, including those on the Queen of the North.
“The safety of the travelling public is paramount,” said Hahn, agreeing something has to be done to ensure the drug and alcohol policy is followed. Hahn pointed out random drug and alcohol testing is mandatory in the transportation industry in the United States and it’s “the only proven method of ensuring protection for the travelling public.”
It might not be so easy, however, given the human rights challenges such testing has faced when employers have tried to implement it. Previous attempts have caused a conflict between safety concerns and the risk of discrimination against employees. Hahn suggested the federal government introduce legislation to allow all ferry operators in Canada to conduct mandatory random drug testing. Since drug testing doesn’t show current impairment, just past usage, it has been generally deemed unacceptable by arbitrators and courts. But what about a situation such as on the Queen of the North where public safety is concerned?
Employers in safety-sensitive situations need to be aware of potential drug use by employees, but implementing mandatory drug testing won’t be easy without legislative reform, said Michael Ford, a labour and employment lawyer with McCarthy Tétrault in Calgary. In the early 1990s, Transport Canada tried to legislate drug testing in safety-sensitive industries but it died with a change in government and hasn’t seen the light of day since, he said.
“The government reacted to pressure from the unions and has since let employers deal with the issue,” said Ford, adding there doesn’t seem to be a desire in government to regulate drug testing in the transportation industry, despite the TSB’s recommendation to BC Ferries.
This leaves the onus for mandatory drug testing on the employer. However, while employers such as BC Ferries may see it as necessary to ensure public safety, without legislated standards it will continue to face legal challenges on privacy and human rights grounds.
Because the legal questions around drug testing are unresolved, and therefore open to interpretation by courts and arbitrators, it makes it costly for employers to fight for drug testing and for unions to challenge it, said Ford.
“Many employers reserve the right to test but for pragmatic reasons choose not to,” said Ford.
The fact BC Ferries has a zero-tolerance policy doesn’t help if it doesn’t actively enforce it, as the TSB found in its investigation. Ensuring crew members aren’t bringing drugs on board in the first place doesn’t help its argument that drug testing will solve the problem.
“It’s great to have a zero-tolerance policy, but without enforcement it’s not an effective deterrent,” said Ford. Post-incident testing is easier, since it has justification from an event that is unlikely to be challenged, he said.
Employers can try to bargain drug testing into collective agreements, but unions are unlikely to agree. They can also unilaterally introduce it, but this can result in “endless human rights investigations,” said Ford.
Employers should review drug and alcohol policies and ensure they are followed, but they can be limited if they want to implement mandatory testing. BC Ferries president David Hahn knows this, which is why, in response to the TSB’s recommendation to review its drug policy, he’s called for national legislation applying to all ferry operators, if not the entire transportation industry, in Canada. Without it, his options are limited for ensuring employees are completely drug-free while on duty.
“The Queen of the North is a classic example of the TSB shifting responsibility of drug testing to employers,” said Ford. However, without legislative guidance, particularly in the vigorous and lively trade union labour climate in B.C., “mandatory drug testing is subject to all challenges with a question mark at the end.”
Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. For more information visit www.employmentlawtoday.com.
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